Justice Department Refuses to Defend Congress in Legal Battle Over Law Censoring Marijuana Policy Ads

WASHINGTON – The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. The controversial statute was recently ruled unconstitutional by a federal district court. The Solicitor General Paul Clement stated in a letter to Congress that, “the government does not have a viable argument to advance in the statute’s defense and will not appeal the district court’s decision.” Today is Congress’ last day to respond to the federal appeals court in the D.C. Circuit.

“The Justice Department finally met a law so unconstitutional that it could not find any way to defend it,” said Graham Boyd, Director of the ACLU Drug Law Reform Project. “Congress should stop trying to silence public discussion of the cruel and expensive failures of current marijuana laws.”

As the Wall Street Journal reported today, “Mr. Clement’s opinion also could serve as a warning to Congress that it can’t assume the Justice Department will support the controversial riders that lawmakers have been adding to funding bills if those riders are challenged in court.” The Wall Street Journal added, “Two past solicitors general, Charles Fried and Seth Waxman, said it is rare for a solicitor general to refuse to defend a statute passed by Congress” and that “Mr. Fried, who served under President Reagan, recalled making such a decision only twice.”

The law at issue in ACLU et al., v. Norman Y. Mineta is Section 177 of the FY2004 federal spending bill, also known as the ‘Istook Amendment,’ which threatens to cut off more than $3 billion in federal funding from local transit authorities nationwide that accept advertisements critical of current marijuana laws. Rep. Ernest Istook (R-OK) introduced this amendment to the spending bill last year and Congress re-included the same law in this year’s federal budget. The ACLU, the Drug Policy Alliance, the Marijuana Policy Project, and Change the Climate, Inc. filed the lawsuit in February 2004 after the Washington Metropolitan Area Transit Authority rejected an advertisement they submitted that criticized marijuana laws.

In June 2004, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia ruled the ‘Istook Amendment’ unconstitutional on First Amendment grounds, stating “there is a clear public interest in preventing the chilling of speech on the basis of viewpoint,” and that, “the government articulated no legitimate state interest in the suppression of this particular speech other than the fact that it disapproves of the message, an illegitimate and constitutionally impermissible reason.”

The government initially appealed the district court’s decision, but the Solicitor General recently notified Congress that the Justice Department would not pursue the appeal because there was, “well established Supreme Court precedent” that the law “amounted to viewpoint discrimination in violation of the First Amendment.” The Solicitor General’s letter to Congress can be viewed online.

“The government has resorted to silencing free speech because it knows it cannot win an honest debate about marijuana prohibition,” said Steve Fox, Director for Government Relations for the Marijuana Policy Project. “Such desperate attempts to prop up a failed policy show just how bankrupt a policy marijuana prohibition is.”

Following the district court’s ruling, the plaintiffs displayed their paid advertisement in the D.C. Metro during the month of September, 2004. The ad shows a group of ordinary people standing behind prison bars under the headline, “Marijuana Laws Waste Billions of Taxpayer Dollars to Lock Up Non-Violent Americans.” The advertisement can be viewed online.

“We’re delighted that the Justice Department has refused to defend Congressman Istook’s indefensible attack on free speech and drug policy reform,” said Bill Piper, Director of National Affairs for the Drug Policy Alliance. “It’s a shame that he has caused the federal government to waste so much taxpayer money pursuing this futile issue to this point.”

Joe White, Executive Director of Change the Climate, Inc. added, “Almost 800,000 people were arrested for marijuana violations last year. We applaud the Justice Department for telling Congress to back off. Our drug laws are a failure, and Congress has gone to great lengths to hide this truth from the public.”

The same groups who sought to run the advertisement filed the lawsuit. The plaintiffs are represented by the Washington D.C. law firm Arnold & Porter LLP. The lawsuit names Norman Y. Mineta, U.S. Secretary of Transportation as the defendant.

With the dismissal of the government’s appeal, the district court’s injunction prohibiting the Department of Transportation from enforcing the Istook Amendment becomes final and permanent.

The Solicitor General’s letter to Congress, the advertisement, legal documents and background materials are online at www.aclu.org/drugpolicy, www.changetheclimate.org, www.drugpolicy.org, and www.mpp.org.