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 that ordered 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
federal court last week. A ruling is expected soon.

The ACLU 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.

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 because 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. 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 that 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 rewriting 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. 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?