A QUIET NEW TACTIC IN THE WAR ON DRUGS

For decades, supporters of the war on drugs have been losing the debate
about the policy, even as they continue to lock up hordes of harmless
offenders. But prohibitionists have a new tactic to help them get the best
of the argument: Don't let the other side speak.

One day last year, Ernest Istook noticed an ad on the Washington Metro
transit system with an unusual message: "Enjoy better sex! Legalize and tax
marijuana." Most people who ride the bus or the subway manage to absorb all
sorts of little surprises on their daily commute, but not Istook. He wrote a
letter to the local transit agency to say it had "exercised the poorest
possible judgment" in running the ad at "a time when the nation and the
Washington, D.C., area in particular suffer from chronic substance abuse."

Normally a complaint like that would have no effect. Istook, however, is not
only a Republican member of the House of Representatives from Oklahoma but
chairman of the Transportation and Treasury Appropriations Subcommittee.

He placed a provision in a funding bill reducing federal funds for Metro by
$92,500, as punishment for the ad, and denying money to any transit system
that accepts ads advocating "the legalization or medical use" of marijuana
or other illicit drugs. And it passed. Transit agencies across the country
now have to choose between tolerating open debate and getting a total of
$3.1 billion in federal funds.

So your local bus or subway system is free to run all sorts of ads and
public service announcements. It is free to post lurid signs warning of the
evils of smoking pot or snorting cocaine. But if it gets a nickel from the
federal government, it may not allow any message raising doubts about the
wisdom of the drug war. This is the Bill O'Reilly approach to policy
disputes: Shut up!

Already the policy is having an effect. The group that ran the original ad,
which calls itself Change the Climate, recently tried to buy space on
Washington buses for an ad with the caption: "Marijuana laws waste billions
of taxpayer dollars to lock up non-violent Americans." But even simple
statements of fact run afoul of the censor's decree. Metro refused, saying
it couldn't afford to risk the loss of $170 million in federal money.

The transit system does, however, display messages by the Partnership for a
Drug-Free America urging parents to "set the rules and expect your kid to
live drug free," as well as ads dealing with issues like abortion, the Iraq
war and the alleged failures of the U.S. Department of Education.

Upon being rebuffed, Change the Climate filed a lawsuit, supported by the
American Civil Liberties Union, arguing that the ban violates the 1st
Amendment guarantee of freedom of expression. Wednesday, a federal judge in
Washington hearing the case got to consider a variety of preposterous
rationalizations for the law.

One is that the government is not obligated to subsidize unwholesome
messages. Congress, the Justice Department argued, "has an undeniable
interest in ensuring that no federal funds are used, directly or indirectly,
to facilitate activity that Congress does not wish to promote." But in this
case, the ad would not have cost the government money--Metro would have made
$91,875 from renting the space.

The government lawyer also insisted that Congress had good reason to ban
such ads because they "might encourage the use of drugs, which is illegal at
this time." But the ad didn't say people should do something illegal. In
fact, by showing a picture of people behind bars while pointing out that
"hundreds of thousands of citizens have already been imprisoned" for
breaking marijuana laws, the ad might even deter violators.

The real point of the ad was to change the law. To Ernest Istook and U.S.
Atty. Gen. John Ashcroft, though, any suggestion that a law be changed
amounts to incitement to violate it. In their addled version of democracy,
you can advocate the enactment of a ban but not its repeal.

In the case of our drug laws, that sort of rule might be prudent, because
their total failure makes them vulnerable to criticism. Such as the point
made by Change the Climate, which says it's unfair to imprison people for
using a largely benign drug that one of every three Americans has tried.

To silence critics is an implicit concession by the government that the drug
war is impossible to defend. Alas, you can't win a debate by silencing the
other side, but you can lose one.