A CENSOR IS SLAPPED DOWN

Feds Won't Defend Rep. Istook's Indefensible Law

Congratulations to Solicitor General Paul Clement for deciding, and
saying in a letter to Congress, that "the government does not have a
viable argument to advance in the statute's defense and will not
appeal the district court's decision."

It is rare for a solicitor general, the government's trial lawyer, to
refuse to defend in court a statute passed by Congress. Charles Fried
told The Wall Street Journal he could remember doing it only twice
when he served in the post from 1985 to 1989.

What prompted such an unusual refusal was what is generally called the
Istook Amendment, introduced into a 2004 appropriations bill. Miffed
that a few reform organizations bought ads criticizing marijuana
prohibition on buses and other transit systems, Republican Rep. Ernest
Istook of Oklahoma wrote language denying federal funds to transit
systems that accepted such advertising.

After the provision went into effect, the ACLU, Drug Policy Alliance,
Marijuana Policy Project and Change the Climate Inc. jointly developed
an ad (showing people behind bars with the caption, "Marijuana Laws
Waste Billions of Taxpayer Dollars to Lock Up Non-Violent Americans")
and tried to buy space for it with the Washington Metropolitan Area
Transit Authority. Fearing the loss of federal dollars, the authority
declined the ad, and the matter went to court.

Last June, Washington, D.C.- based U.S. District Judge Paul Friedman
ruled the Istook provision was unconstitutional, stating "there is a
clear public interest in preventing the chilling of speech on the
basis of viewpoint." At first, the government declared it would appeal
the decision. But this week, Solicitor General Clement conceded there
was no way the government could win the case.

The shocking thing is that any member of Congress thought prohibiting
ads was legitimate, but the attempt is a reflection of how weak the
case for prohibition is.

At least the Justice Department recognized the hopelessness of trying
to defend the indefensible.