NEW STATUTE ON MARIJUANA ADS LOSES JUSTICE DEPARTMENT SUPPORT

The Justice Department told Congress it won't defend a new law that
withholds federal funds from transit agencies that run advertisements
promoting the medical use or legalization of marijuana.

The decision by the acting solicitor general effectively opens the way for
transit authorities to display the ads without risking their share of the
federal $7.2 billion pot for public transit.

The decision isn't expected to bring big ad dollars to transit agencies,
but could offer a boost in election years when marijuana initiatives are on
local ballots. In a two-page letter to the top lawyers for the House and
Senate, acting Solicitor General Paul Clement said he decided not to appeal
a U.S. District Court ruling that allowed the ads in the Washington Metro
system, saying the law violated the First Amendment. In his letter, Mr.
Clement said he lacked a "viable argument" for an appeal. The case stems
from a rider attached to a 2004 appropriations bill by Rep. Ernest Istook
Jr. (R., Okla.) that threatened to cut federal funding for transit
authorities that accept ads critical of federal marijuana laws. After the
law went into effect, the American Civil Liberties Union Drug Law Reform
Project, Drug Policy Alliance, Marijuana Policy Project and Change the
Climate Inc. tried to buy ad space from the Washington Metropolitan Area
Transit Authority to promote legalizing marijuana.

The authority, which had accepted similar ads before the law was enacted,
turned down the request fearing it would lose federal funds.

The groups sued the Washington Metro and Transportation Department. U.S.
District Judge Paul Friedman in Washington sided with the groups, ruling
that the law violated the First Amendment. In a letter to Congress last
month about the possibility of an appeal, Mr. Clement wrote "an argument
could be made that the possibility that the transit authority could
prohibit a broader swath of advertisements than Congress specified would be
enough to justify the narrower condition's facial constitutionality." But,
he said, doing so might have the larger effect of requiring "a ban on
antidrug advertisements and perhaps other similar public-service
announcements." "I have therefore determined 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 holding the provision as currently
drafted unconstitutional." The immediate effect of the opinion is
questionable. The Washington ad ran in area subway stops after Judge
Friedman's ruling. Two past solicitors general, Charles Fried and Seth
Waxman, said it is rare for a solicitor general to refuse to defend a
statute passed by Congress. Mr. Fried, who served under President Reagan,
recalled making such a decision only twice while he was solicitor general
from 1985 to 1989. Mr. Clement's opinion also could serve as a warning to
Congress that it can't assume the Justice Department will support the
controversial riders that lawmakers have been adding to funding bills if
those riders are challenged in court. Congress's deadline to file an appeal
is today.

While the Senate or House could file an appeal using outside attorneys,
legal experts say it would be exceptional for Congress to seek one without
Justice Department backing.

A spokeswoman for Mr. Istook said the congressman hadn't asked anyone to
pursue an appeal. Graham Boyd, director of the ACLU Drug Law Reform Project
said he was surprised at the solicitor's opinion because he had battled
Justice Department lawyers in two similar cases where "they fought to the
bitter end." Steve Fox, director of government relations for the Marijuana
Policy Project, which runs ads for ballot initiatives on marijuana, said
the group doesn't have specific plans for ads. "But, it is comforting to
know that we will not be prohibited from advertising wherever we choose to
go," he said.