Challenge to Metro Ad Curb Argued

RULING IN SUIT CHARGING CENSORSHIP COULD AFFECT TRANSIT SYSTEMS ACROSS NATION

A lawsuit accusing Congress of illegally selecting the kind of
political views that can be expressed in Metro station advertisements
will probably help shape what Americans can see in mass transit
systems across the country, attorneys said in a court hearing yesterday.

A federal judge heard arguments in a suit filed after Metro rejected
an ad from Change the Climate, a group that advocates reforms in laws
against marijuana. Metro took the action after Congress passed a law
that denies federal money to transit systems that accept advertising
promoting the legalization of drugs.

U.S. District Judge Paul L. Friedman warned that the case's outcome
might require Metro to make painful choices. The transit system could
be pressed to remove other politically charged advertisements it has
long accepted on train platforms and bus shelters, or it could be
forced to give up crucial federal funds that help pay for the transit
system's expansion. He said he would announce a ruling soon.

Change the Climate and two other drug policy groups filed the suit,
along with the American Civil Liberties Union. They contended that the
law amounted to unconstitutional censorship.

The suit challenges a law that threatens 53 transit authorities with
the loss of $3.1 billion in federal funds annually if they accept ads
criticizing U.S. drug policy. Rep. Ernest J. Istook Jr. (R-Okla.),
angered by a marijuana legalization ad that appeared last year in the
Metro system, introduced the legislation in December. The ad showed a
couple with the legend "Enjoy better sex! Legalize and Tax Marijuana."

In court yesterday, the Justice Department argued that the federal
government can refuse to help provide a canvas for groups to state
their political views. Drug policy critics have other places to
advertise, said Sara Clash-Drexler, the government attorney.

By providing federal funds to transit authorities -- including about
$170 million to Metro for capital projects each year -- the government
is essentially helping to create the public gathering place where such
ads are displayed, Clash-Drexler maintained.

But in weighing the arguments, Friedman told the lawyers that he had
"a lot of questions" about why some political advocacy advertisements
are considered appropriate by Metro and Congress -- but the drug
policy ads are not.

"Isn't that arbitrary?" he asked.

Several Metro train platforms now carry ads that call for President
Bush to be censured for what they describe as misleading the American
public about the war in Iraq. Another ad in the system calls for the
resignation of Secretary of Education Roderick R. Paige for alleged
failures in a federal education program.

The judge said that Istook "maybe didn't see the ads about President
Bush or Secretary Paige, or his legislation would have been broader...
to stop those, too."

The case could hinge on how far Congress's power over the federal
purse extends. Attorneys on both sides said that Congress had
indicated over the years that it wanted to deny funds to organizations
and government agencies that accepted advertising promoting or
encouraging illegal behavior.

"These ads might encourage the use of drugs, which is illegal at this
time," Clash-Drexler said.

But Friedman said he saw little evidence of that and pointed to an
oversized advocacy ad displayed at the back of the courtroom. It
featured a series of faces behind the bars of a jail cell, with the
following caption: "Marijuana Laws Waste Billions of Taxpayer Dollars
to Lock Up Non-Violent Americans. "

That is one of the ads Metro rejected, setting off the suit.

"What rational person would look at this ad and say it encourages you
to break the law?" the judge asked.