834, 115 S.Ct. 2510 (1995). That the ballot initiative
process is funded by federal monies simply does not transform all speech
that occurs in the context of the initiative process into
D. The Barr Amendment is Viewpoint Discriminatory
The First Amendment generally prohibits the government from proscribing
speech "because of disapproval of the ideas expressed." R.A.V., 505 U.S.
at 382 (internal citations omitted). Regulations affecting protected
speech may be generally classified in three ways: (1) regulations
restricting speech on account of the message expressed
(viewpoint-based), see id.; (2) regulations of speech on a certain
subject-matter or of a particular category (content-based), see Hill v.
Colorado, 530 U.S. 703, 723, 120 S.Ct. 2480 (2001); or (3) regulations
based on criteria other than the content of the restricted speech, see
Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746 (1989).
In its briefs, the United States contends that the Barr Amendment is a
content-neutral regulation of speech, if it regulates speech at all.
Thus, the United States asserts that the Court need only ask if the Barr
Amendment is a reasonable restriction on the time, place and manner of
plaintiffs' speech. See Heffron v. International Soc'y for Krishna
Consciousness, Inc., 452 U.S. 640, 647 (1982); Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293 (1984). However, a
content-neutral regulation is one "justified without reference to the
content of the regulated speech." Clark, 468 U.S. at 293. The Barr
Amendment explicitly refers to the subject-matter of the speech it
The Barr Amendment regulates speech about penalties for marijuana use.
As such, it is content-based. Buckley, 525 U.S. at 209 (Thomas, J.,
concurring) (advocating that the requirement that petition circulators
disclose their names and the amount that the's were paid was
content-based regulation). However, the Barr Amendment does more than
"directly regulate the content of speech."*fn9 Id.
The Barr Amendment proscribes specific viewpoints. Viewpoint-based
regulations are those that prohibit specific messages, but not others.
R.A.V., 505 U.S. at 391; see id. at 392 (The city "has no authority to
license one side of a debate to fight freestyle, while requiring the
other to follow
Marquis of Queensberry rules."). In Good News Club v.
Milford Central School, the Court held that a resolution refusing to
permit a club to use a school's facilities "for the purpose of conducting
religious instruction and Bible study" constituted viewpoint
discrimination. 533 U.S. 98, 104, 107, 121 S.Ct. 2093 (2001) In the
instant case, the challenged legislation prohibits plaintiffs from
circulating a petition that would reduce penalties for marijuana use,
while permitting the Board to approve a ballot petition calling for
increased penalties for marijuana use. As counsel for the United States
ultimately conceded at oral argument, the Barr Amendment is — on
its face — viewpoint-based. See Tr. at 73:11-13, 86:23-87:7.
Having conceded that the Barr Amendment was viewpoint-based
legislation, the United States argued that all legislation is
viewpoint-based in some way, and that the Barr Amendment merely expresses
a policy decision about the type of legislation the District should
adopt. Id. at 73:14-15. Yet, that the Barr Amendment seeks to limit
speech, which might result in a legislative enactment, in no way insulates
the Barr Amendment from constitutional review. Rather, in First National
Bank of Boston, the Court noted that the regulation in question did not
prohibit a corporation from expending corporate funds to express its views
on public issues unless those issues became the subject of a referendum.
435 U.S. at 793. Such a limited scope of the regulation did not shield
the regulation from First Amendment scrutiny, but rather was cause for
suspicion that the legislature may have been concerned with silencing
corporations on a particular subject. Id. In the instant case, suspicion
gives way to reality. Congress clearly intends that the District's
citizens not have the opportunity to express views on a particular
subject matter, and has silenced a specific viewpoint advocated by
plaintiffs. The unavoidable conclusion is that the Barr Amendment is
viewpoint-discriminatory and is subject to the strictest scrutiny.
1. Secondary effects doctrine does not apply
The United States argues that any impact that the Barr Amendment may
have on speech is merely a "secondary effect" of legislation aimed at
regulating specific conduct and, therefore, is constitutionally
permissible. Specifically, the United States contends that the Barr
Amendment "is directed at the `secondary effects' of increased drug use
and supply in the District of Columbia." See USPFF ¶ 67.
The secondary effects doctrine may represent a "valid basis for
according differential treatment to even a content-defined subclass of
proscribable speech." R.A.V., 505 U.S. at 389. However, the regulation
must be "justified without reference to the content of the speech." Id.
(citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925
(1986)). For example, in Boos v. Barry, the Court explained that "the
desire to suppress crime has nothing to do with the actual films being
shown inside adult move theaters, [and the Court] concluded that the
regulation was properly analyzed as content neutral." 485 U.S. 312, 320,
108 S.Ct. 1157 (1988) (discussing Renton).
Where a regulation is concerned with the "direct impact of a particular
category of speech," such a regulation would necessarily be
content-based, and "not a secondary feature that happens to be associated
with that type of speech." Boos, 425 U.S. at 321; id. at 335 (Brennan,
J., concurring) ("The Renton analysis . . . creates a possible avenue for
governmental censorship whenever censors can concoct `secondary'
for regulating the content of political speech.").
The United States suggests that, had the Barr Amendment attempted to
regulate the "primary effects of expression," it would be targeted at the
"effect on voters of reading the ballot initiative;" rather, the
Amendment is directed at impacts on public health and safety. Yet, the
clear intent of the Barr Amendment — evident on its face — is
to prevent the District of Columbia from expending money on the process
of enacting or carrying out any law legalizing or otherwise reducing
penalties associated with possession, use or distribution of schedule I
substances. The Amendment directly regulates the legislative enactment
process. It regulates the two avenues for passing legislation in the
District: the ballot initiative and the City Council.*fn10 If Congress
was motivated by a desire to regulate marijuana use, it has obvious and
accessible direct means of enacting such legislation. Instead, the Barr
Amendment seeks to remedy the potential "effects" of the political speech
and the legislative process, in which plaintiffs seek to engage —
i.e. the possibility that the District residents will hear plaintiffs'
speech in support of the initiative and sign a Board-approved petition,
resulting in the placing of the initiative on the ballot. The purpose of
prohibiting the enactment of legislation legalizing marijuana is thus
integrally tied to the content of plaintiff's expression, and the
infringement on plaintiffs' speech is not a "secondary effect" of the
E. Limited Public Forum
Plaintiffs urge this Court to find that the ballot initiative process
is a limited public forum that has been opened to political discourse
through the Home Rule Act. See Perry Education Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948 (1983) (if a school had, by
policy or practice, opened its mail system for use it might create a
"limited" public forum, to which entities of similar character would have
a constitutional right of access). Because the Court finds that the Barr
Amendment is a viewpoint discriminatory regulation that implicates
plaintiffs' core political speech and is thus subject to strict scrutiny,
the Court need not decide whether the ballot initiative process is a
limited public forum.
Nevertheless, Supreme Court precedent on limited public forums confirms
the notion that Congressional legislation must not contravene First
Amendment protections. That Congress has created the ballot initiative
process — and may take it away — is not license for
unconstitutional regulation. In Legal Services Corp. v. Valezquez, the
Court held that, although Congress had itself created the Legal Services
Corporation, it could not constitutionally create a forum for the legal
aid attorneys to speak and then regulate the attorneys' speech on the
basis of content. 531 U.S. at 547-48. Similarly, the Court has held that
a university, by accommodating meetings of student groups, created:
[a] forum generally open for use by [the] groups.
Having done so, the University has assumed an
obligation to justify its discriminations and
exclusions under applicable constitutional norms.
The Constitution forbids a State to enforce certain
exclusions from a forum generally open to the public,
even if it was not required to create the forum in the
Widmar v. Vincent, 454 U.S. 263, 267-68, 102 S.Ct. 269, 273 (1981). The
ballot initiative process clearly opens a forum to political expression,
albeit limited by the Home Rule Act. The Barr Amendment discriminates on
the basis of viewpoint within this arena for speech. As such, it is
subject to exacting judicial scrutiny, whether or not the ballot
initiative process is characterized as a "limited public forum."
The United States suggests that, should the Court find that the ballot
initiative process is a limited public forum, "the District Board of
Elections would be required to allow any and all subjects to become
ballot initiatives regardless of whether or not they ultimately could
become law." USPFF ¶ 77. Such a result, contends the United States,
would be contrary to law: not only does the ballot initiative not have to
be open to all viewpoints — legally it cannot." ¶ 78. Although
the government cites to Committee for Voluntary Prayer, 704 A.2d 1199
(D.C. 1997) and Bishop, 401 A.2d 955 (D.C. 1979), neither of these cases
nor any other authority support such a conclusion.*fn11 As discussed
earlier, ballot initiatives necessarily propose legislation, and many may
advocate changes in existing law. Therefore, while not deciding the
question of whether the ballot initiative process is properly analyzed as
a limited public forum, the Court wholly rejects the United States'
underlying argument that the process is "limited" by existing law.
F. The Barr Amendment Can Not Survive Strict Scrutiny
When the government discriminates on the basis of viewpoint, such
regulation is presumed to be constitutionally infirm and is subjected to
the strictest judicial scrutiny. R.A.V., 505 U.S. at 382. In Good News
Club, the Court held that, where it had found that a "restriction [was]
viewpoint discriminatory, [it] need not decide whether in is unreasonable
in light of the purposes served by the forum." 533 U.S. at 107. Even
where the government asserts a compelling interest in a regulation, it is
unclear what interest would be sufficient to justify viewpoint
discrimination. Id. an 2103. (finding that "it is not clear whether a
State's interest in avoiding an Establishment Clause violation would
justify viewpoint discrimination"); cf. Boo, 485 U.S. at 321 ("[f]or the
state to enforce a content-based exclusion it must show that its
regulation is necessary to serve a compelling state interest and that it
is narrowly drawn to achieve that end.")
In Buckley and Meyer, content-neutral restrictions on core political
speech failed to survive strict scrutiny. Buckley counseled that
content-neutral restrictions on the speech of petition circulators
"significantly inhibit[s] communication with voters about proposed
political change" and must be "narrowly tailored to serve compelling
governmental interests." Buckley, 525 U.S. at 192, 192 n. 12 (discussing
The United States fails to demonstrate that the Barr Amendment is
narrowly tailored to achieve a compelling government interest. The United
States claims that the Barr Amendment is justified by the government's
interest in ensuring that federal law on marijuana use are upheld and
in preventing individuals from using marijuana. USPFF ¶ 61 (government
has "substantial interest in preventing the illegal distribution,
cultivation, and possession of marijuana and other Schedule I drugs
prohibited by the Controlled Substances Act").
While recognizing that the federal government's interest in enforcing
the Controlled Substances Act may constitute a compelling interest, the
Court finds that the viewpoint discriminatory effect of the Barr
Amendment is nonetheless unconstitutional. In Good News Club, the Supreme
Court rejected the argument that a state law provision could justify
viewpoint discrimination: "Because we hold that the exclusion of the Club
on the basis of its religious perspective constitutes unconstitutional
viewpoint discrimination, it is no defense for Milford that purely
religious purposes can be excluded under state law." 533 U.S. at 107, n.
Furthermore, even if the Court were to apply traditional strict
scrutiny no the Barr Amendment — a standard of review more
appropriate for a content-based, viewpoint-neutral restriction on speech
— it is unlikely that: the United States could demonstrate that the
Barr Amendment is narrowly tailored to achieving the governmental
interest in compliance with federal narcotics law. Strict scrutiny
requires that government regulation be no more restrictive of First
Amendment rights than necessary to achieve the asserted government
interest. Buckley, 525 U.S. at 192; cf. Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989) (for content-neutral regulation, government need
not choose the most effective means).
The United States asserts in a conclusory fashion that "prohibiting the
District from enacting or implementing a law that would legalize or
reduce the penalties for the possession, use, or distribution of a
Schedule I substance . . . is narrowly tailored to meet the government's
interest in controlling drug-related crime and abuse." USPFF ¶ 64.
The Court, however, can not concur. Congress has the constitutional
authority to directly legislate for the District of Columbia; thus,
pursuant to the extraordinary powers given to Congress by the
Constitution, Congress may enact a substantive law that prohibits any
changes in the District's law regulating marijuana use. Congress also
possesses the power to veto any legislative act passed by the City Council
or by the citizens of the District. In place of directly legislating for
the District, or vetoing measures adopted by the citizens or City
Council, Congress chose to burden individuals' right: to political
expression in its attempt to achieve its objective. Such a weighty
imposition on the First Amendment rights of plaintiffs simply cannot
withstand strict scrutiny.
For the foregoing reasons, the plaintiffs' motion for summary judgment
is GRANTED and the defendant's motion for summary judgment is DENIED.
Constitutional precedent of long-standing persuades the Court that the
Barr Amendment regulates core political speech on the basis of the
viewpoint expressed and is unconstitutional as applied to plaintiffs.
Accordingly, enforcement of the Barr Amendment with respect to
plaintiffs' proposed ballot initiative is permanently enjoined by the
An appropriate Order accompanies this Memorandum Opinion.
ORDER AND JUDGMENT
Pursuant to Federal Rule of Civil Procedure 58 and for the reasons
stated by the Court in its Memorandum Opinion docketed this same day, it
ORDERED that plaintiffs' motion for summary judgment is hereby
GRANTED; and it is
FURTHER ORDERED that defendant United States' motion for summary
judgment is hereby DENIED; and it is
FURTHER ORDERED and ADJUDGED that the Clerk shall enter final judgment
in favor of plaintiffs and against defendant, which judgment shall
declare that Section 127 of the District of Columbia Appropriations Act,
2002, Pub. L. 107-96, § 127, 115 Stat. 923 (2001) ("Barr
Amendment"), is unconstitutional; and it is
FURTHER ORDERED that defendant District of Columbia Board of Elections
and Ethics is hereby permanently RESTRAINED, ENJOINED and PROHIBITED from
refusing to take action on plaintiffs' "Medical Marijuana Initiative of
2002" on the grounds that any such action night violate the Barr