May|June 2004
Just Say Nothing
Joe White's battle to legalize the discussion of drug legalization.
By Gary Greenberg
JOE WHITE WAS IN THE MIDDLE OF A FAMILY DINNER at a restaurant one evening last December when his cellphone rang. A reporter was on the line to tell him that a powerful congressman had just introduced a bill intended to shut down an advertising campaign that White was running. "I was stunned," he recalled, "and probably I could have chosen better words, but I just said what was on my mind."
The next day's
Washington Post informed readers that White "didn't think a nutcase congressman would try to eliminate free speech." Furthermore, said White, if Ernest Istook, the Oklahoma congressman pushing the legislation, didn't like what White was doing, he "ought to read the Constitution and get a life."
Sitting with White in his spacious and sunny living room in Greenfield, Mass., it's hard to imagine that intemperate outburst coming from this soft-spoken, slightly built 48-year-old. But White, whose main job is providing telemarketing services to nonprofits like UNICEF, earned Istook's ire honestly.
Last fall, Change the Climate, a nonprofit that White started in 1999, plastered 560 advertising posters throughout the Washington, D.C., Metro system. Five hundred were overhead cards in buses showing retirees and workers above a caption that read, "Save Our Taxes!" Fifty were posters along the lengths of buses' curbside flanks depicting a teenage girl who was smiling and showing off her tongue stud next to a banner that said, "Protect our Children!" And 10 were almost life-size displays that graced subway stations with a happy couple on a beach, the man holding the woman in his arms with the message, "Enjoy better sex!" On each poster, the imagery was followed by a tag line bound to antagonize a socially conservative Republican like Istook: "Legalize and Tax Marijuana."
Istook, the chairman of the transportation and treasury subcommittee of the House Appropriations Committee, responded with a letter to the Washington Metropolitan Area Transit Authority. "At a time when the nation and the Washington, D.C., area, in particular, suffer from chronic substance abuse and sexually transmitted disease," he complained, "I find it shocking that WMATA provides this ad space." To ensure that the organization learned "the proper lessons from this experience," and to warn other transit authorities, Istook docked WMATA's budget by $92,500double the amount that he reckoned the Change the Climate space was worth. Istook also proposed legislation prohibiting federal funds from going to "any Federal transit grantee involved directly or indirectly in any activity that promotes the legalization or medical use" of drugs on Schedule I of the Controlled Substances Act, which includes marijuana. The measure passed without debate as part of the 2004 omnibus budget act.
Change the Climate has banded together with three other drug policy reform groups to fight what they call the Istook Amendment. In February, after the original ads had come down because their allotted time had expired, White's group submitted a new ad to WMATA, this one showing a herd of people behind bars underneath the headline, "Marijuana laws waste billions of taxpayer dollars to lock up nonviolent Americans." In accordance with the new law, Metro officials promptly rejected the ad; the four drug policy reform groups then announced their intention to ask D.C.'s federal district court to declare the Istook Amendment unconstitutional.
A battle over talking about drugs, not using them, isn't something White expected when he started Change the Climate. And similar campaigns that he ran in Nevada and California were carried out without a hitch. But before he encountered Istook, White had already caused a ruckus in Boston, a city famous for its bluestocking history, where three Change the Climate ads were banned in 2000. The resulting court battle had just reached the First Circuit appeals court headquartered there when the Istook Amendment became law. So White now finds himself in two fights over free speech, battling not only to legalize marijuana but also to legalize the discussion of legalizing marijuana, at least on public transit.
THE MOST FAMOUS VICTIM of Boston's notoriously prim sensibilities may be Walt Whitman's
Leaves of Grass, which the city banned in 1881. But the city's first target was probably Christmas, whose celebration the Puritans prohibited, on the grounds that it was too jolly, from 1659 to 1681.
Even against this prissy backdrop, the Massachusetts Bay Transportation Authority has distinguished itself. In the past three decades, the MBTA (known to locals as the T) has landed in federal court five times to defend its rejection of advertisements about subjects like abortion and condoms, and even one about Christmas. In 2001, the T refused to display an ad from the Church With the Good News proclaiming that "Christians in the Bible never observed Christmas" and that they didn't believe in "lies about Santa Claus, flying reindeer, elves, and drunken parties"a message the original Puritans might have happily posted on the Boston Common.
Churchmen don't control public spaces anymore, and the First Amendment limits the ability of governments to do so. But over the last three decades, a series of court cases has established that transit authorities may regulate the content of ads in and on their vehicles and in stations, depending in part on what kind of forum the courts determine the transit system to be. This right to restrict content depends on whether or not a given state court considers the proposed venue a "designated public forum," like a sidewalk, park, or other traditional public space, where content restrictions are permitted if they are based on a "compelling" state interest, or a "nonpublic forum," like a government-managed place where business is conducted, and where the state's reason for a restriction need only be "reasonable." But no matter what the standard is for legitimate restrictions on content, a state may never reject a message because it carries a particular viewpoint���even if the viewpoint is that marijuana ought to be legal or that Christmas is only an excuse for drunken orgies.
The need for "viewpoint neutrality" was brought home to the T in 1994, when the First Circuit ruled against the T's effort to stop the AIDS Action Committee, or AAC, from displaying condom ads that relied on sexual innuendo. (One ad promised that a condom would "make you 1/1000th of an inch larger"; another urged passengers to "Read this before you get off.") The T claimed that its guidelines prohibited all sexually explicit content, whatever the viewpoint. The AAC countered this claim by offering as evidence ads that the T had accepted, including one for the movie
Fatal Instinct that featured a woman with crossed bare legs under the headline, "Opening Soon." The First Circuit ruled that the decision to reject the AAC ads while running the movie ads counted as viewpoint discrimination. The court ordered the T to put up the condom ads.
Yet six years later, when Joe White got back a faxed copy of his advertisement application with comments by the T's director of marketing scrawled across the top, her reasons for rejecting the ads hardly seemed neutral. "Change the Climate promotes the use of marijuana in a suttle [sic] way," she wrote, apparently hastily. "[It] is really a reform marijuana [movement] in an effort to legalize." In response, White sued for his right to run the controversial ads.
In a three-day trial in 2002, CTC's lawyers introduced evidence designed to show that the T accepted ads about drugsfrom alcohol distillers, for example, and from the Partnership for a Drug-Free New England and Americaand rejected White's only because of their pro-marijuana viewpoint. T officials claimed that a difference of opinion about the dangers of marijuana wasn't what led them to reject the ads. Rather, they said, they decided that because the T is the official means of transportation for 60,000 Boston public school students, they had an obligation to protect the children from harmin this case the harm of risking jail if they hopped off the train after seeing one of the ads, lit a joint, and were arrested. To allow an ad with the message that police resources would be better used chasing "real" criminals, argued the T, is to give children the impression that marijuana use is not really a crime. Change the Climate's messagethat drug laws are more dangerous to children than the drugs themselveswas itself dangerous, according to the T, because it might lead kids to go out and prove the message true.
The trial judge, Robert Keeton, found this argument persuasive. While he ruled that the T's advertising guidelines were "constitutionally flawed," he also determined that the ban was legitimate because it "was based not on Change the Climate's ideology, but on the inappropriate content of the advertisements."
CTC is appealing the decision. White's lawyer, Sarah Wunsch of the American Civil Liberties Union, argues that the T offered no evidence that the ads would cause children to break the law and that, even if they had, that should not justify restriction. As Professor Eugene Volokh of UCLA School of Law explained, "praising, defending, minimizing the harm of, even advocating illegal conduct is protected speech" when children are in the audience as well. Only in the case of imminent danger, like a riot, could such speech be regulated by the government.
Volokh said that the best way for the T to keep White's ads off their trains and buses would be to reject all advertising about drugs, pro and con. (T officials and their lawyers would not comment for this story, citing the ongoing litigation.) But even this kind of restriction would have to be rooted in a "compelling state interest" if the T is found to be a designated public forum, and Keeton did not rule on this question. Both sides are asking the First Circuit to determine what kind of forum the T is and how free it is to carry on the tradition of banning the offensive in Boston.
WHITE'S CRITICS INSIST THAT HE COULD MAKE HIS POINT without, in their view, endangering children. "I don't think [White's subway station ad] said, 'here's a principled discussion of this or that regulatory principle.' It said, 'Have better sex,' " said Tom Riley, a spokesman for the White House Office of National Drug Control Policy. "I don't think that any teenager seeing that would have any doubt about what that means."
White doesn't agree. He said that the campaign is based on protecting children from drug prohibition, which he thinks, at least in the case of marijuana, is more dangerous than drug use. Drug laws, he says, not only threaten children with the prospect of imprisonment (or, in the case of conviction, permanent loss of access to student loans); they also become a wedge between parents and children, making honest discussion difficult. "I started Change the Climate," White told me, "because I was driving my [then-17-year-old] son to soccer practice, and he said, 'Dad, why do adults lie to children about marijuana?' "
White's focus on kids, such as his use of the photo of the tongue-studded girl in one of the advertisements in his D.C. campaign, is intended to drive home this point. "She's pretty happy and relaxed," he said in describing what he meant by the ad, "and she's asking her parents to just tell her the truth. That's the point here: to de-demonize marijuana and make people comfortable enough to be honest."
This kind of honesty is rare, White said, not only between parents and children but also in public conversation about drug policy. The war on drugs has gone from railing against drug use to railing against any discussion that does not adopt an antidrug stance. He pointed particularly to a moment during the Boston trial when a T official said that White's ads were dangerous to children because they gave the impression that "there's another side of the story." Daniel Abrahamson, the director of legal affairs of the Drug Policy Alliance, said that this trend, which he calls "zero tolerance not for drugs but for drug speech," has increased in the eight years that he has been working in drug policy litigation.
"I think people are afraid to speak out about the drug war and its distortions," said White. "There is a fear that you will find the power of the state in your face in an uncomfortable way." The fear seems to afflict even the wealthy and powerful among his allies. None of his major financial backers would go on record for this story. Only one, a businessman from the Midwest who has given Change the Climate about $600,000, would talk at all. "They have such Draconian laws now," he explained. "They could ruin your life. Plus, I'm chairman of the board of a public company. This could be quite sensitive."
These encroachments on freedom of speech, and the fear they create, give some credence to White's contention that the war on drugs is not simply a misguided attempt to protect children. "This is an unabashed assault on civil liberties," he said, one with grim political implications that go far beyond the right to indulge in a vice or to post an advertisement on the subway. "I think that ultimately it's about an idealized notion of a right way for human beings to live: going to church, believing in a few accepted deities, and living completely drug-free."
White surely knows that that quote is an overstatement: People are sent to jail for using drugs, not missing mass. But his rhetoric draws on his conviction that the drug war is irrational, based more on old prejudicesabout the excesses of the '60s, for examplethan on concerns about public health. "It's totally illogical," White says, "spending four or six billion dollars a year to stop people from smoking pot." It's the kind of illogic, he thinks, that would never survive an honest debate.
Gary Greenberg is a Connecticut writer. His work has appeared in The New Yorker and Harper's Magazine.