A SIMPLE LEGAL QUESTION

On rare occasions a lawyer makes a decision so reasonable it takes your
breath away. The acting solicitor general of the United States, the
government's chief appellate lawyer, has told Congress he will not appeal a
district court's ruling that a law banning aid to transit systems that
accept ads advocating the legalization of marijuana is an unconstitutional
infringement of free speech.

Ho hum, you say? Listen to the reason Paul Clement gave: "The government
does not have a viable argument to advance in the statute's defense." We
need more lawyers like that - lawyers who refuse to mount no-hope appeals -
both in government service and in private practice. Remember the Clinton
administration's Justice Department, arguing - in vain - that Secret
Service agents couldn't be questioned about a president's conduct?

In private practice there may not be much to hope for. Clients do, after
all, insist on throwing away their money in hopeless causes. A lawyer is
entitled to take it if he can file and argue an appeal with a straight
face. Government work is different. Government lawyers, of course, have a
duty to defend the interests of their clients, even when they disagree with
the policy in question, but just look around. Cases like the marijuana
transit ads come up all the time. Clement's case arose in the Washington,
D.C., transit system, which had accepted such ads before the law passed,
but stopped for fear of losing federal transit aid. After the lower-court
ruling, it started running the ads again.

The MBTA lost a similar case last year in the 1st U.S. Circuit Court of
Appeals in Boston, a case in which the transit aid law did not figure. The
court said the T had unlawfully discriminated against pro-marijuana ads.

We don't want legalized marijuana, but we also don't want any level of
government deciding that some issue ads are permissible and some are not.
That's why we have a Bill of Rights. Hats off to Clement for understanding it.