METRO MUST ACCEPT PRO-MARIJUANA ADS Metro officials must accept advertising that promotes the legalization of marijuana now that the Justice Department has opted not to defend the transit agency's ban on such ads. Justice officials had until Wednesday to appeal a federal court decision that struck down a law recently passed in Congress stating that transit agencies would lose federal funding if they accepted ads advocating the legalization or medical use of such illicit drugs. Metro has yet to receive pro-marijuana ads since the Justice Department's decision, but a spokesman said the agency would not reject such ads unless they "showcased profanity." "The transit agency is not in the business of picking and choosing what can and cannot go up," Metro spokesman Steven Taubenkibel said. The government "does not have a viable argument to advance in the statute's defense," acting Solicitor General Paul D. Clement said in a letter to Senate attorneys last month that explained his decision. He said the law also could have banned transit agencies from posting ads with anti-drug messages and other public service announcements. U.S. Rep. Ernest Istook, Oklahoma Republican, pushed for the law last year after Metro ran a series of ads by Change the Climate Inc., a Boston group that promotes the legalization of marijuana. One ad touting marijuana legalization showed a young couple embracing, with the caption "Enjoy Better Sex!" Mr. Istook had no comment Wednesday on the Justice Department's decision, a spokeswoman said. D.C. Council member Jim Graham, who serves on the board of directors for Metro, said he agreed with the Justice Department's decision, though he did not care for the marijuana ads. "I think that any decision that favors the First Amendment right to freedom of expression is a good one," said Mr. Graham, Ward 1 Democrat. "Some of these ads are hard to swallow, but what we're talking about is freedom of expression. And sometimes we just have to gulp." The American Civil Liberties Union (ACLU) sued the federal government last year when Metro rejected a Change the Climate ad with the headline "Marijuana Laws Waste Billions of Taxpayer Dollars to Lock Up Non-Violent Americans." Metro officials cited the new federal law when rejecting the ad, saying the cash-strapped agency could not risk losing $170 million in federal subsidies. Joseph White, executive director for Change the Climate, said the group has not ruled out another round of pro-marijuana ads for the Metro system. "I expect that we will be launching a campaign when we decide where that would be most effective," he said. "It's a little too early to say right now." ACLU officials were surprised yesterday but lauded the Justice Department's decision. "It's very unusual," said Graham Boyd, director of the group's drug law reform project. "I think it is a surprisingly frank admission that the First Amendment requires an evenhanded treatment." Anti-drug advocates were disappointed by the decision not to defend the case. "It's very distressing news that it appears we're not fighting back on this," said Joyce Nalepka, president of the District-based Drug-Free Kids. "Washington, D.C., really needs to make a statement. There must be a way to stop these ads."