E-Mail This Article to a Friend FREE SPEECH MBTA must say yes to drugs BY DAVID S. BERNSTEIN

On the day the US Supreme Court heard arguments to strike down or let stand a California law allowing the medical use of marijuana, the US Court of Appeals for the First Circuit ruled that the Massachusetts Bay Transit Authority (MBTA) must sell ad space to people who want to legalize pot.

The MBTA had refused to accept advertising from Change the Climate, a Greenfield-based organization that favors drug-policy reform, back in 2000. The First Circuit District Court sided with the MBTA, but on Monday that decision was reversed. Although MBTA officials tried to give other justifications, the Court of Appeals concluded they rejected the ads because they disagreed with the message — "viewpoint discrimination," says Boston attorney Harvey Schwartz, who argued the case on behalf of the American Civil Liberties Union.

By reversing the decision, the Court of Appeals sends the case back to district court — where the MBTA apparently hopes a judge will yet provide some way to prevent the ads from appearing. "At no place in the US Appeals Court’s ruling does it order the MBTA to post those ads," MBTA spokesperson Joe Pesaturo says in an e-mail. Change the Climate sees it differently. "We expect that the MBTA will abide by the ruling and post the ads," says Joe White, executive director.

Most people probably would find the ads surprisingly tame for all this fuss. (Former governor Paul Cellucci vowed to fight the ads all the way to the US Supreme Court.) Two of the rejected ads, which have run in Washington, DC, and on Boston-area billboards, denounce pot smoking, while recommending that parents use more honesty when discussing the subject with their kids. The third ad suggests that "police are too important ... to waste on arresting people for marijuana."

"There is such a lack of public debate" on drug-policy issues, White says. He points out that the hard-line messages of groups such as the Partnership for a Drug-Free America (PDFA) run everywhere: cable broadcaster Comcast has even donated $50 million worth of ad time to PDFA. All that Change the Climate wanted to do was pay for ads — its original rejected ad buy was about $50,000, White says — to contribute a different perspective.

The MBTA was willing not only to turn down those ad dollars, but to spend huge sums of taxpayer money defending the decision. Pesaturo denies White’s estimate of over a million dollars in legal expenses, but would not provide a figure. (And the district court still must decide whether to make the MBTA pay the defense’s legal bills.) Interestingly, just days before the Court of Appeals decision, MBTA CEO Michael Mulhern rejected a call to ban alcohol ads, because the agency needs the money, as the Boston Globe first reported Tuesday. "If the MBTA were to ban these ads, the Authority would be giving up millions of dollars," Mulhern wrote in a letter to the Rider Oversight Committee, which had recommended the booze ban. Apparently the state believes that alcohol is not worth the sacrifice, but pot is.