Drug policy reformers cross their T's

Massachusetts Lawyers Weekly's feature article this week is on Change the Climate's recent court battle with the MBTA over the posting of their ads in MBTA stations. As we told you earlier, Change the Climate prevailed and the court ordered the MBTA to run the ads. The T had rejected them on the grounds that they "could encourage young people to smoke pot." The 1st Circuit ruled the rejection constituted "'viewpoint discrimination' and had stifled a legitimate opinion; i.e., that marijuana should be legalized."

To Boston lawyer Harvey A. Schwartz, who represented Change the Climate, this was always a simple matter. It was not a case about pot. It was a case about protecting people's right to engage in controversy through free speech.

"Controversy," he muses. "That's the whole point of free speech. You don't need the Constitution to protect boring speech."

The T brought in witness Cornelia Kelley, the head of the Boston Latin School, to speak about the way her students would respond to the marijuana ads. Kelley said, "There is a message there that marijuana is okay; it's not as bad as cocaine or heroin. And the message, to my mind, that's a very confusing message for young people. There is a sense there that marijuana is acceptable."

Reported to be the turning point of the case, Schwartz's cross examination was brilliant.

The lawyer produced an ad for Doc Watson "hard lemonade" that had already been posted in MBTA subways. The ad read: "Do it on the rocks."
The exchange between Schwartz and Kelley then went as follows:

Q. Do you believe the MBTA should allow this ad to be posted where your students can see it going back and forth to school?

A. Apparently the MBTA has already made that decision.

Q. Well, I know, but you've already told us that you believe the MBTA should not post the three ads that my client wants posted. Do you believe the MBTA should post that ad?

A. I think the difference ...

Q. No, ma'am. The question was: Do you believe the MBTA should post that? Yes or no.

A. Yes.

Q. Okay. And it doesn't concern you that your students are told to "Do it on the rocks" with an alcoholic beverage on their way to and from school?

A. I didn't say that.

Q. It does concern you?

A. It concerns me ...
Schwartz also established that students could, in fact, express the same views expressed in the ads (i.e., that marijuana should be legalized) and not be disciplined:

Q. So if one of your students in a debating class wants to express the viewpoint that "Police are too important ... too valuable ... too good ... to waste on arresting people for marijuana when real criminals are on the loose," if he expressed that viewpoint, would you suspend or expel him?

A. After school hours? No.

Q. What about in a school-related debating club?

A. It would depend on the set of circumstances in which it took place.

Q. Okay. But you recognize that students are allowed by law to have that viewpoint if they want, don't you?

A. I recognize that we all have different viewpoints. We all have different thoughts and ideas.

Q. And if a student wants to express this viewpoint, he's certainly allowed to say these words, isn't he?

A. Given the appropriate venue.

Judge Keeton of the lower court was not swayed but the 1st Circuit saw the logic in Schwartz's argument.

Picking up on Schwartz's cross-examination with Kelley, the 1st Circuit later found that: "The MBTA's own evidence fails to support its argument. Headmaster Kelley's point was not that the [ad] would induce drug use, but the rather different point that the Ad presented a 'mixed message.' The mixed nature of the message was about which drugs were legal and which were not; thus her concern was that the ad would promote confusion about whether marijuana use was illegal. The MBTA's conclusion, however, requires an additional step — that the ads would not only confuse teenagers about marijuana's illegal status, but that this confusion would then lead teenagers to smoke marijuana. Neither step in the reasoning is supported by the record."

In an interesting side point, counsel for the MBTA, Rudolph F. Pierce of Boston was once counsel for the Pru Cinema, which had to hire the lawyer in order to pursue the right to air adult movies like "Behind The Green Door" and "Devil and Mrs. Jones." Guess he believes in First Amendment protections for porn but not for drug policy reform. Hard to figure how he could argue on both sides.

Meanwhile, the fight for free speech is not over for good. The MBTA has redefined its rules on allowing ads that have been judged constitutionally acceptable. "The fine-tuned guidelines have a list of specific items excluded from advertising, ranging from material "demeaning or disparaging individuals or a group," depictions of firearms, nudity, obscenity or political ads."

One expects they will refuse future drug policy reform advertising as unacceptable on political grounds.