University Rejection of Students’ Marijuana-Themed T-Shirt Violates First Amendment–Gerlich v. Leath

Iowa State (ISU) officially recognizes a student chapter for NORML, a marijuana advocacy group. All ISU student groups can use ISU trademarks on merchandise if they comply with the “Guidelines for University Trademark Use by Student and Campus Organizations,” as approved by ISU’s Trademark Licensing Office. In 2012, the TM Office approved this design by the ISU NORML student chapter (I’ll call it design #1):

[Note: Rebecca’s blog post has other images, including other rejected designs]

Shortly thereafter, on Nov. 19, 2012, the Des Moines Register wrote an article about marijuana reform efforts nationally. The article cited an ISU NORML group student rep as saying “his group has gotten nothing but support from the university. He even got approval from the licensing office to make a NORML T-shirt with the ISU logo; the red shirt features Cy the Cardinal on the front, and a pot leaf on the back . . . .” The article included a photo of the shirt.

That morning, a GOP staffer from the Iowa legislature “sent a formal legislative inquiry” asking if the TM Office had approved the shirt. This inquiry caused consternation among university brass. At 3pm, the University president asked if the permission could be revoked. At 3:19, the University president emailed “[w]e need to deal with this. . . . What were they thinking?”

The next day, on 11/20, a representative from the governor’s “Office of Drug Control Policy” inquired about the Des Moines Register article. The University president explained his attitude about this inquiry: “anytime someone from the governor’s staff calls complaining, yeah, I’m going to pay attention, absolutely….we are a state entity and he’s the chief executive of the state, and so directly or indirectly we’re responsible to the governor.” The following day, on 11/21, the university told the governor’s office that the T-shirt was “permitted” under university policies but “this procedure is being reviewed.”

On Nov. 24, the NORML student chapter asked if it could reprint the T-shirt. Its request was put on hold. On Nov. 29, university reps met with the students and told them the university would not approve any designs featuring both ISU trademarks and a marijuana leaf. The reps also said the students needed special pre-approval before submitting further designs to the TM Office. On 12/3, the university vetoed reprints of T-shirt design #1.

On 1/16, the University revised its TM policies to prohibit “designs that suggest promotion of the below listed items . . . dangerous, illegal or unhealthy products, actions or behaviors; . . . [or] drugs and drug paraphernalia that are illegal or unhealthful.” They acknowledged this policy modification was due to the NORML situation. Applying the new policy, the TM Office rejected all further NORML T-shirt designs featuring a marijuana leaf, as well as designs where the M in the NORML mark was replaced with “M********” or “M[CENSORED].” However, the TM office did approve subsequent designs that included just the unmodified NORML acronym.

The Eighth Circuit Court of Appeals easily finds a First Amendment violation here. The court says the TM policy for student groups creates a “limited public forum.” [It’s odd to apply a physical space concept to a pool of intangible assets. I think this bothered Rebecca too.] “Defendants’ actions and statements show that the unique scrutiny they imposed on NORML ISU’s trademark applications was motivated by viewpoint discrimination.” Among the supporting evidence:

* not allowing reorders of a design that had been previously approved
* putting a hold on the reorder request when other groups weren’t similarly treated
* the requirement to get pre-approval before submitting new designs to the TM office
* no other rejected requests from student groups were based on political messages
* the substantial evidence that ISU acted because of the inquiries from the legislature and governor’s office.

ISU argued that it was engaged in government speech, but the court says that exception doesn’t apply to limited public fora. Furthermore, ISU allowed 800 student groups to take advantage of its trademark policy and those groups had opposing views (e.g., both Democrat and Republican student groups)–which means that ISU clearly isn’t doing the speaking. Rebecca has issues with this analysis because she thinks ISU, as a trademark owner, should be allowed to control its brand.

To me, this is an easy case because everything snowballed after the legislature and governor’s office made inquiries. This is a fairly typical path towards censorship. Even if the legislature or governor never demanded that the university take action, everyone understood these inquiries were not made benignly or neutrally–especially when they are coming from sources of university funds.

But to Rebecca’s point about brand control, how should public universities proceed in light of this ruling? The most obvious approach would be to shut down the limited public forum, i.e., not allow student groups to use the university’s trademarks at all. This would be an overly restrictive and draconian approach, so perhaps universities could allow licenses only for a very narrow class of trademarks based on pre-approved templates. Otherwise, providing any more freedom to student groups, without descending into a policy that lets student groups do whatever they want, inevitably creates arbitrary policy boundaries that can lead to free speech challenges. In other words, what sounds like ordinary quality control in the commercial setting translates into unconstitutional policies in the public university setting. Because they seem to be caught between a rock and a hard place, I doubt other public university trademark licensing departments are cheering this ruling.

Case citation: Gerlich v. Leath, No. 16-1518 (8th Cir. Feb. 13, 2017). The initial complaint, along with Exhibits B and C.