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Jewish World Review May 4, 2004 / 13 Iyar, 5764

Debra J. Saunders

Debra J. Saunders
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Railroaded speech | Imagine if the federal government passed a law that limited advertising of one political point of view. But you don't have to imagine such a law because it already exists, even though most citizens — even some D.C. politicians who voted for it — aren't aware of it.

Last year, Congress passed and President Bush signed a big fat transportation-spending bill with a tiny provision ordering that no federal funds go to transit systems that run any ad that "promotes the legalization or medical use of" any drug listed in Schedule 1 of the Controlled Substances Act. If a transit agency sells a billboard to an advocacy group that supports medical marijuana, it must say adios to the federal dollars that keep its wheels and rails humming.

The good news is: A lawsuit against the measure was argued in a Washington, D.C., federal court last week. A ruling is expected soon.

The American Civil Liberties Union sees the law as a First Amendment violation. As Bruce Mirken, the San Francisco voice of the Marijuana Policy Project in Washington, noted, "This is viewpoint discrimination."

Added Mirken, "San Franciscans right now are barred by law from buying a billboard in BART or Muni stations supporting Proposition 215 (the medical marijuana measure approved by California voters in 1996) and from urging our members of Congress to try to change federal law."

Meanwhile, political groups that oppose medical marijuana are free to advertise on BART.

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How could this be? Last year, Rep. Ernest Istook, R-Okla., became aware of ads in Washington's Metro system with the provocative slogan "Enjoy better sex!" followed by "Legalize and tax marijuana." They were sponsored by Change the Climate, a Massachusetts group opposed to the drug war.

Istook was steamed. As aide Micah Swafford explained Monday, the congressman figured, "If we're spending billions of taxpayer dollars to discourage drug use, we should not be using government funds or government property to encourage drug use."

It especially frosted Istook to learn that the public Metro system subsidized the ad campaign — to the tune of $46,250. And since Istook is the chairman of the House transportation appropriations subcommittee, he wrote to the Metro chairman that the ads made him question Metro's $67 million in federal funds.

Up to this point, Istook had a legitimate beef. If the Metro suits wanted to give away taxpayer-funded advertising space to public service groups, surely they could have limited the free ads to charities that actually help people and skipped the political advocacy.

But then, Istook went way too far. During conference-committee negotiations to produce the final transportation-spending bill, he inserted what critics now call "the Istook amendment" — the threat of yanking federal dollars from systems that advertise views that dissent with the government's drug war.

Swafford argued that the Istook measure is similar to the ban on cigarette advertising in transit systems. That ban, however, is voluntary. Congress didn't pass a law silencing tobacco companies, because of a little matter known as the First Amendment. And there certainly is no law that prohibits Big Tobacco from dissenting publicly with government policies on transit billboards.

The U.S. Department of Justice argued in court that the measure doesn't infringe on free speech because local transit districts are free to accept banned ads and just say no to the federal money. That's nice, but those federal dollars come from local taxpayers who ought to be able to ride on transit they've already paid for.

You would think that members of Congress would know better than to pass a law that tries to muffle dissenting views. Then again, members didn't get to vote on each amendment, and the transportation-spending bill had so much gunk in it that the media barely covered Istook's handiwork.

As a conservative, I don't like seeing the courts rewrite laws. But when Capitol Hill can't control itself, it invites the courts to provide adult supervision.

You can understand why Istook wouldn't want taxpayers to subsidize a pro-drug message. Still, he is not in charge of what people can say. And he should know better than to use his clout to stifle political dissent on the drug war.

It makes you wonder: What were supporters afraid of? A two-sided argument?

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© 2003, Creators Syndicate