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May 2004
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Constitutional Shenanigans

You’ve heard me rail about Ernest Istook’s bizarre spending provision that would actually prevent metro systems from accepting advertising that promotes legalization of marijuana (despite what Istook says, it doesn’t prevent advertising illegal activites, but only advertising advocacy for a particular political position). It’s very hard to get any more unconstitutional than preventing the expression of a particular political viewpoint.
Well, a little over a week ago, the ACLU, Change the Climate, Drug Policy Alliance, and the Marijuana Policy Project
argued their case in court. I wasn’t able to report on it in detail at the time, but I’ve enjoyed reading the court filings and wanted to share a little with you.
Of course, Section 177 is so bad, it’s amazing the government lawyers are even able to mount a defense. In fact, their defense has depended on misdirection and outright inapplicable legal references. Embarrassing.
It makes the ACLU’s response (pdf) to the government’s defense (pdf) quite delightful to read. The ACLU realizes how absolutely consitutionally indefensible the government’s position is and they can’t help getting in some digs. (Of course, these sarcastic passages are in addition to detailed, strong constitutional arguments by the ACLU — the Memorandum of Plaintiffs (pdf) is a thing of beauty.)
Opening statement in the reply brief:

It is disappointing that the Government decided to attempt to defend the
indefensible – a statute designed, and already operating, to restrain one side of an active
political debate. Justice would better have been served had the Justice Department not
imposed the entire burden of defending the Constitution on the plaintiffs and the Court.

Ouch! Nice score. But wait, it gets better. The government had tried to argue that they weren’t regulating content since the metro system could, on their own, decide to eliminate all speech.

For example, a transit system could bar all advocacy statements relating to
marijuana use from any point of view. Of course that would unconstitutionally
discriminate against marijuana policy as a topic, so maybe the transit system could bar all
advocacy of legal change, or maybe all advocacy altogether, or maybe all advertising
altogether.

The Government might as well argue that a statute withholding federal funds from
transit systems that permit black women to sit in the front of the bus would be
constitutional because a transit system could comply in an even-handed manner by
removing all seats.

Oooh! Two points. But there’s more:

As the Court will recall from the conference setting the briefing schedule, the
filing of the opposition brief was delayed for some weeks to permit ample time for “coordination” among various unidentified organs of Government. In the brief’s closing peroration, however, we see exactly what that coordination has yielded:

An order enjoining enforcement of Section 177 would
undermine Congress’ legitimate interest in not promoting
or providing the means for the expression of ideas that run
contrary to and may serve to undermine federal policy
adopted to protect the public’s well-being.

Gov’t Opp’n Mem. at 22. This passage is followed by a “cf.” site to two cases that do not
support it, because the only direct support is to be found in the likes of Brave New World
and 1984.

There is no government interest, none at all, in suppressing ideas that run contrary to federal policy. There is rather an interest in robust free debate and expression, and in preventing government efforts to suppress ideas that run “contrary to federal policy.” That is exactly why Section 177 should be enjoined without further delay.

Game. Set. Match.
Now all we have to do is wait for the court decision.

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