February 22, 2004 -The St. Petersburg Times (FL)

A Phony War Defeats Free Speech

By Robyn Blumner, Times Perspective Columnist

The beauty of Jefferson's marketplace of ideas is that it opens our society to all voices and all arguments, presuming the most persuasive will rise to the top.

But those who promote the War on Drugs find this a dangerous concept. Drug reform makes too much sense and in recent years has been too compelling to voters. Already, seven states and the District of Columbia have legalized medical marijuana through voter initiatives (and two more states through legislation) and a recent Gallup poll shows that 74 percent of Americans are on that side of the issue.

To combat this outbreak of common sense, the drug warriors have fought back with antidemocratic and repressive methods.

In the mid-1990s, the Cato Institute had its tax-exempt status threatened by a New York Republican congressman incensed over the think tank's sponsorship of a program on the failed drug war.

A few years later, former Republican congressman from Georgia, Bob Barr, successfully pushed an amendment to prevent Washington, D.C., from counting the votes on its medical marijuana initiative. The American Civil Liberties Union overturned the bar in federal court; and when the votes were finally tallied, the initiative passed with 69 percent approval.

Barry McCaffrey, as drug czar under President Clinton, had to be sued after he threatened doctors in California with the revocation of their prescription-writing privileges if they recommended marijuana to patients. The Bush administration continued the policy. But it was set aside by a federal appellate court that said the threats violated the free speech rights of doctors and patients.

And now Congress has just approved a law blatantly censoring pro-drug reform messages.

It was the brainchild of Rep. Ernest Istook, R-Okla., the religious right's water carrier who, as chairman of the District of Columbia Subcommittee, blocked city ordinances with which he disagreed such as those authorizing publicly funded abortions and needle-exchange programs. Late last year, Istook added an amendment to the omnibus spending bill that cuts off $3.1-billion in federal funds from transit authorities nationwide if they accept ads for their bus, train or subway systems promoting the reform of drug laws. Large transit systems in big cities could forfeit tens of millions of dollars if they don't comply. San Francisco has at least $100-million at risk, New York at least $75-million and the Washington Metropolitan Area Transportation Authority $85-million.

So once again those who favor a less militant approach to the nation's drug war - and only want the freedom to make their case to the public - have been forced to trot back to federal court to secure their First Amendment rights.

On Wednesday, the American Civil Liberties Union and the Drug Policy Alliance, among other groups, filed suit against U.S. Transportation Secretary Norman Mineta and the Washington Metro, after the D.C. transit system refused to accept a paid ad by the groups that proclaimed:

"Marijuana Laws Waste Billions of Taxpayer Dollars to Lock Up Non-Violent Americans." The suit asks that the Istook amendment be found unconstitutional and that the court rule that no funds shall be withheld from transit systems that accept drug reform ads.

The case should be a legal slam dunk. If free speech means anything in this country it is that a drug reform ad should be permitted to occupy the same bit of public space as an antiabortion ad or a gun control appeal. "Congress keeps forgetting that there is no drug exception to the Constitution," says Ethan Nadelmann, executive director of the Drug Policy Alliance.

And get this: While drug reformers are being gagged by Congress, the same spending bill provides $145-million for communicating the opposite message. That whopping sum, funded by taxpayers, is to be used to buy ads promoting the drug war, with a special emphasis on demonizing marijuana.

What is really going on here? Nadelmann theorizes that for people like Istook, Attorney General John Ashcroft and drug czar John Walters, the war on drugs is less about crack and heroin than it is about marijuana. "It's about the culture clash," Nadelmann says, "It's about continuing ways to wage war against the '60s and '70s."

As Ashcroft continues to send DEA agents into California to raid legal medical marijuana dispensaries and Walters uses the public weal to campaign against drug reform initiatives on state and local ballots, it is clear that Nadelmann is right. This is not about upholding the law, but fighting a movement. The drug warriors are fiercely antagonistic toward the shift in public opinion on medical marijuana and other drug reforms; and their authoritarian impulse is to shut down the free marketplace of ideas.

Apparently, the competition is getting to be a bit too stiff.