Ethan Nadelmann, executive director of the Drug Policy Alliance and a leading critic of the war on drugs, is grateful to Ernest Istook. So is Joseph White, founder of Change the Climate, "an organization of parents and business executives who believe that current marijuana laws are harmful to our children and far too expensive."
Istook, an Oklahoma Republican who has built a reputation as an enthusiastic drug warrior during a dozen years in the House of Representatives, has not changed his mind and joined the antiprohibitionists. But he has done them a favor through his ham-handed effort to suppress their point of view.
Last fall Istook was offended by ads in Washington's Metro system in which Change the Climate said the government should "Legalize and Tax Marijuana." So he did what any intolerant, power-mad politician would do: He wrote legislation to ban the speech he did not like, not only from Metro buses, trains, and stations but from every mass transit system in the country that receives federal funds.
Istook's amendment, Section 177 of the Consolidated Appropriations Act of 2004, took effect at the beginning of the month. Four days later, the Washington Metropolitan Area Transit Authority (WMATA) turned down an ad from the Drug Policy Alliance, Change the Climate, the Marijuana Policy Project, and the American Civil Liberties Union stating that "Marijuana Laws Waste Billions of Taxpayer Dollars to Lock Up Non-Violent Americans."
Now the ad's sponsors have filed a federal lawsuit challenging Section 177 as an unconstitutional restriction on freedom of speech—a result that should have been entirely predictable to anyone who has bothered to read the First Amendment. Judging from Istook's casual disregard for the rights of people with whom he disagrees, that group does not include him.
Istook made no bones about his motivation or his aim. After writing a letter to the WMATA expressing his "grave concern and displeasure" regarding Change the Climate's ads, he proposed taking $92,500 in federal funding (twice the estimated value of the ad space) from the Metro system "as a warning to other transit agencies."
In case the warning was not sufficient, Istook wrote Section 177, which denies federal money to any transit authority "involved directly or indirectly in any activity that promotes the legalization or medical use" of illegal drugs. The conference report on the bill made it clear that such activity includes "displaying or permitting to be displayed advertisements…that promote the legalization or medical use of [proscribed] substances."
The report explained that "the conferees are concerned that transit agencies accepting Federal grant funds may be providing their advertising space to organizations that encourage the public to break the law." It specifically cited Change the Climate's D.C. ads, saying "the conferees note with displeasure" that Metro system ad space "has been used to advocate changing the nation's laws regarding marijuana usage."
This astonishing equation of advocating reform with breaking the law speaks volumes about the arrogance of politicians who are so sure of themselves that they see no reason to allow debate. As the groups challenging Section 177 note, "it is Congress that broke the supreme law of the land by enacting legislation for the purpose of suppressing the expression of opinions about marijuana policy."
Federal courts generally have treated transit systems that accept messages on controversial topics as "public forums" in which advertising restrictions based on content are constitutionally suspect. They have never upheld restrictions based on viewpoint, which is what Section 177 imposes: Transit systems are free to accept ads supporting the war on drugs (such as those sponsored by the Office of National Drug Control Policy), but they may not accept ads opposing it.
Istook's willingness to so blatantly violate the First Amendment plays into the hands of his opponents, who portray it as a sign of the drug warriors' intellectual bankruptcy and political desperation. "The message that marijuana prohibition has failed is so powerful," declares Steve Fox of the Marijuana Policy Project, "that the only way the federal government can think of to combat it is by stopping us from communicating with the public."
Although Joseph White says he was "stunned" by Istook's amendment, he adds, "We are grateful to Congressman Istook for bringing these issues so clearly to the forefront." Says Ethan Nadelmann, "We think Congressman Istook's crass proposal will likely accelerate the pace of reform. For this we thank him."
With enemies like Istook, who needs friends?