A federal district court’s determination that Iowa State University officials violated the First Amendment rights of two students by refusing to approve use of the university’s trademarks on t-shirts incorporating a marijuana leaf design has been affirmed by the U.S. Court of Appeals in St. Louis. The students—who were president and vice president of the ISU chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU)—established that the unique scrutiny university officials imposed on their trademark applications was motivated by political viewpoint discrimination. The district court’s order permanently enjoining the defendants from enforcing trademark licensing policies against the plaintiffs in a viewpoint-discriminatory manner was accordingly affirmed (Gerlich v. Leath, February 13, 2017, Murphy, D.).
NORML is a national advocacy group that supports the legalization of marijuana for use by adults. The Iowa State University chapter of NORML (NORML ISU) was an approved campus organization that produced apparel to promote its cause. In order to use ISU’s trademark’s on t-shirts and other items, student groups had to obtain approval by the ISU’s Trademark Office, headed by defendant Leesha Zimmerman. After an article was published in the Des Moines Register in November 2012 about the legalization of marijuana in Iowa—which included a picture of the current president of NORML ISU wearing the organization’s approved t-shirt design—defendant Warren Madden, Senior Vice President of Business & Financial Affairs, informed NORML ISU that the university had rescinded approval of the t-shirt design because it suggested that the university itself supported the legalization of marijuana. Two months later, ISU enacted revised Trademark Guidelines to provide that no designs would be approved that suggested promotion of (1) dangerous, illegal, or unhealthy products, actions, or behaviors, or (2) illegal or unhealthful drugs and drug paraphernalia.
In May or June 2013, ISU rejected two t-shirt designs submitted by NORML ISU because they incorporated a marijuana leaf graphic. On July 1, 2014, plaintiffs Paul Gerlich and Erin Furleigh—then president and vice president, respectively, of NORML ISU—filed suit in the federal district court in Des Moines against Madden, Hill, Zimmerman, and ISU President Steven Leath, under 42 U.S.C. §1983 for alleged violations of their First and Fourteenth Amendment rights. Both sides moved for summary judgment. The district court rejected the plaintiffs’ arguments that the Trademark Guidelines were unconstitutional on their face and unconstitutionally vague, but concluded that the defendants’ trademark licensing decisions, as applied to Gerlich and Furleigh, violated their right to free speech. The court entered a permanent injunction that prohibits defendants "from enforcing trademark licensing policies against Plaintiffs in a viewpoint discriminatory manner and from further prohibiting Plaintiffs from producing licensed apparel on the basis that their designs include the image of a … cannabis leaf." The defendants appealed.
Standing. On appeal, the defendants argued that the plaintiffs did not have standing to bring the suit because they were asserting NORML ISU's right to free speech, not their own. The appeals court disagreed. "Plaintiffs’ allegations that ISU violated their First Amendment rights by rejecting their designs and therefore preventing their ability to spread NORML ISU's message are sufficient to establish an injury in fact," the court said.
Viewpoint discrimination. The defendants next argued that the district court erred by granting the plaintiffs summary judgment on their as applied First Amendment claim. The Eighth Circuit first determined that the district court properly applied the qualified immunity doctrine to this dispute because it involved only injunctive relief and not damages.
The appeals court next found that "ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions." If a state university creates a limited public forum for speech, it may not discriminate against speech on the basis of viewpoint.
The record in the case supported the district court’s conclusion that the defendants’ rejection of NORML ISU's t-shirt designs discriminated against the group based on the group’s viewpoint. The defendants' discriminatory motive was evidenced by the unique scrutiny the defendants imposed on NORML ISU after the Des Moines Register article was published: the Trademark Office rescinded a design it had already approved; NORML ISU was required to obtain approval from Madden and Hill for any future designs using ISU trademarks prior to submitting the designs to the Trademark Office; and NORML ISU was the only ISU student group to have had its trademark application denied for fear that the university would be endorsing a political cause. The record also was replete with statements from the defendants evidencing that their actions were politically motivated.
The district court did not err by concluding that defendants violated plaintiffs' First Amendment rights because defendants engaged in viewpoint discrimination. The defendants did not argue that their administration of the trademark licensing program was narrowly tailored to satisfy a compelling governmental interest.
Government speech defense. The defendants, however, contended that even if they did engage in viewpoint discrimination, they did not violate plaintiffs’ First Amendment rights because the administration of the trademark licensing regime should be considered government speech. The Free Speech Clause applies to government regulation of private speech, but it does not restrict "government speech." However, the government speech doctrine does not apply if a government entity has created a limited public forum for speech.
The court held that the ISU’s administration of its trademark licensing regime was not government speech because ISU had created a limited public forum when it made its trademarks available for use by student organizations if they abided by certain conditions. Even if the trademark licensing regime did not amount to a limited public forum, however, the government speech doctrine still did not apply because ISU did not use its trademark licensing regime to communicate any message to the public, the court said.
The evidence supported the district court’s conclusion that NORML ISU's use of the cannabis leaf did not violate ISU's trademark policies because the organization advocates for reform to marijuana laws, not the illegal use of marijuana. Therefore, the district court did not abuse its discretion in finding viewpoint discrimination and issuing a narrowly tailored injunctive order to remedy the defendants’ First Amendment violations.
The case is No. 16-1518.
Attorneys: Robert Corn-Revere (Davis & Wright, PC) for Paul Gerlich and Erin Furleigh. George A. Carroll, Iowa Attorney General's Office, for Steven Leath, Warren Madden, Thomas Hill and Leesha Zimmerman.
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