CASE PITS 'MEDICAL MARIJUANA' AGAINST U.S. DRUG WAR

Lawyer For Calif. Group Urges Justices To Allow Sick People To Use
Substance To Alleviate Symptoms

An attorney for an Oakland, Calif., marijuana cooperative asked the Supreme
Court yesterday to let sick people obtain marijuana to help alleviate their
symptoms, in a case that pits the movement for state "medical marijuana"
laws against the federal war on drugs.

The court should recognize a "medical necessity" exception to the federal
prohibition on the possession and distribution of marijuana, said Gerald F.
Uelmen, who represents the Oakland Cannabis Buyers' Cooperative, one of
several "cannabis clubs" that sprang up after California voters approved a
referendum in 1996 permitting doctor-approved marijuana use.

In political terms, a victory for the Oakland cooperative would be a boost
to the medical marijuana movement, which has persuaded voters in eight
states to approve referendums similar to California's. But a ruling in
favor of the federal government could be a significant setback to the
movement by creating doubt about the ability of states to deviate from
federal drug law.

Despite strong support for medical marijuana laws in certain states,
national politicians have opposed the laws rather than deviate from the
zero-tolerance drug policy the public generally demands.

Commenting on the case yesterday, President Bush's spokesman, Ari
Fleischer, said that Bush is personally opposed to medical marijuana,
despite remarks he made during last year's campaign that suggested some
sympathy for the states' right to adopt a different policy.

Bush's view echoes that of the Clinton administration, which had argued in
court that the California referendum promotes "disrespect" for drug laws.
The Clinton Justice Department sued the Oakland cooperative, and a federal
court ordered it closed in 1998.

Acting Solicitor General Barbara Underwood, a holdover from the Clinton
administration, urged the justices yesterday not to send a signal that
would "undermine the authority of [Congress] to protect the public from
hazardous drugs." She argued that there is "no currently accepted medical
use" for marijuana and that permitting courts and juries to acquit
marijuana defendants based on "medical necessity" would create a massive
loophole in federal drug control laws.

Her hearing seemed to be receptive. Despite its past support for state
prerogatives, the Supreme Court has already leaned toward the federal
government's assertion of authority against the California cannabis clubs.

In August, after a lower federal appeals court had permitted the Oakland
cooperative to reopen, a majority of the Supreme Court granted the Justice
Department's request to keep the cooperative closed until the justices had
a chance to decide the issue.

Several justices expressed skepticism yesterday about what they called the
"sweeping" nature of the Oakland group's proposed "medical necessity" rule.

"I would have thought . . . that the [appeals court] erred at the point
that it created this kind of blanket defense," Justice Sandra Day O'Connor
said.

"Every respondent who wishes to take advantage of it is going to have to
show that they are suffering from a serious medical condition . . . and
that they have no reasonable alternative," Uelmen responded.

However, some justices also seemed concerned that, by seeking a court order
to shut the cooperative rather than pressing criminal charges, the Justice
Department had effectively used a federal judge to sidestep what might have
been a politically unpopular prosecution in California.

"Isn't the real concern behind this that with the passage of the California
referendum and the popularity . . . that necessarily entails it will be
very, very difficult for the government ever to get a criminal conviction
in a jury trial?" Justice David H. Souter asked Underwood.

The government's dispute with the cooperative "is ideally suited for
resolution in a civil litigation," Underwood told the court.

Seemingly conceding that their chances of victory at the Supreme Court are
slim, medical marijuana backers have launched a major public relations
campaign to convince potential supporters across the country that the court
lacks the power to invalidate state medical marijuana laws.

Even if cannabis clubs were put out of business, people in states that
permit medical marijuana could still grow their own, they say, and it would
be up to the federal government to find and prosecute them.

The case is U.S. v. Oakland Cannabis Buyers' Cooperative, No. 00-151.

Separately yesterday, the justices heard arguments in a case that will
decide whether the New York Times and other major publishers may freely
redistribute past articles by freelance authors to online databases such as
Lexis-Nexis. The Washington Post Co. joined a friend-of-the-court brief in
support of the publishers.

The writers say that they retain rights to the work under federal copyright
law and that it is unfair for huge media corporations not to share the
profits that come from republishing the articles on the databases.

The publishers say that, as reproduced by the databases, the articles are
"revisions" over which the law grants them full control. Publishers say
that they might have to purge thousands of articles from the databases
rather than face what the writers have predicted would be "massive
liability claims."

The case is New York Times v. Tasini, No. 00-201.