ACLU and Drug Policy Groups Sue Over Censorship of Advertisements Criticizing

The nation’s major drug policy reform groups today filed a lawsuit against the U.S. government and the Washington Metropolitan Area Transit Authority for censoring the speech of those critical of the government’s “War on Drugs.”

“The government does not want the public to know how badly our drug policy has failed, so it is trying to silence Americans who oppose the War on Drugs,” said Graham Boyd, director of the ACLU Drug Policy Litigation Project, one of the groups involved in the lawsuit. “Fortunately, the First Amendment clearly prohibits this kind of blatant viewpoint-based censorship.”

The lawsuit responds to an amendment buried in the 2004 federal spending bill that cuts off more than $3 billion in federal funding from local transit authorities that accept advertisements critical of current marijuana laws and other drug laws. With at least $85 million at stake, the Washington Metro last week rejected an advertisement submitted by a coalition of drug policy reform groups that criticizes marijuana laws for wasting billions of taxpayer dollars and imprisoning non-violent offenders.

The rejected advertisement sponsored by the ACLU, Change the Climate, the Drug Policy Alliance, and the Marijuana Policy Project 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 same groups that sought to run the advertisement filed today’s lawsuit.

Representative Ernest Istook (R-OK) added the amendment to the 2004 omnibus spending bill last year after voicing objections to marijuana law reform ads by Change the Climate, an organization of parents and business executives that educates the public on marijuana policy issues. The “Istook Amendment,” as it is known, directs Congress to deny federal funds to local transit authorities that display advertisements promoting “the legalization or medical use of any substance listed in Schedule I …; of the Controlled Substances Act.”

“Our Constitution ensures that citizens can get both viewpoints on marijuana issues,” said Joseph White, Executive Director of Change the Climate. “Government ads promote expensive and harsh punishment, while our ads suggest new ways of thinking that protect our children and save tax dollars.”

Although the only transit authority named in the lawsuit is the Washington Metro, the Istook Amendment applies to local transit systems across the United States — which under the 2004 budget are slated to receive approximately $3.1 billion in federal funding. For instance, San Francisco transit authorities have at least $100 million at stake, Denver has at least $80 million and New York at least $75 million, while Illinois could forfeit nearly $150,000,000 designated for three major projects if transit authorities in the state were to accept a pro-drug policy reform advertisement.

“Congress keeps forgetting that there is no ‘drug exception’ to the Constitution,” said Ethan Nadelmann, Executive Director of the Drug Policy Alliance. “But there’s a silver lining to the Istook Amendment in the opportunity it presents for us to show just how foolish and extreme the drug war’s proponents have become.”

The groups noted that the same budget that includes the ban on advertising in support of marijuana law reform also includes $145 million in taxpayer money for pro-War on Drugs advertising that focuses primarily on an anti-marijuana campaign. Advertisements appearing in public buses, trains, and subway systems have become a key strategy for the White House’s billion-dollar media campaign, which delivers its message via more than 1,300 media outlets nationwide.

“Ads promoting the government’s position on marijuana are all over the Washington Metropolitan Area Transit Authority and other public transit systems around the country,” said Steve Fox, Director of Government Relations for the Marijuana Policy Project. “For the government to advertise one view while banning ads expressing differing opinions in the same forum is viewpoint discrimination and a clear violation of the First Amendment.”

The lawsuit, ACLU v. Mineta, asks the court to declare the Istook Amendment unconstitutional, to order the Washington Metro System to accept the groups’ paid advertisement, and to prohibit the federal government from cutting off any funds to the Washington Metro or any other transit authority that permits the display of advertisements “promoting the legalization or medical use” of marijuana or other Schedule I drugs.

“Congress is trying to block needed political change by censoring speech that gives the public the facts about drugs and drug laws,” said Arthur B. Spitzer, Legal Director of the ACLU of the National Capital Area. “All messages should be allowed to compete in the marketplace of ideas. That’s what America is about.”

The lawsuit names Norman Y. Mineta, U.S. Secretary of Transportation and the Washington Metropolitan Area Transit Authority as defendants. The Washington D.C. law firm Arnold & Porter LLP will serve as lead counsel.

The advertisement, legal complaint and brief, a list of transit authorities affected by the law and other background information is online.