The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Iowa State University owns the trademarks "'Iowa State University,' 'Iowa State,' 'ISU,' 'Cyclone,' and 'Cy,' as well as logos, such as Cy the Cardinal (Cy) graphics and Cy the mascot." It has licensing guidelines for student groups (and other groups) that want to use the marks:
The guidelines state that designs using ISU marks "must … appropriately portray the image of Iowa State University," that an ISU "[m]ark cannot be incorporated into or dominated by the marks of others," and that "[n]o products considered dangerous or offensive will be approved, including but not limited to products … promoting firearms, drugs, alcohol, gambling, gaming or tobacco." The [University] Trademark Office will not license ISU marks for certain items it considers a liability risk or as inappropriately portraying the University's image, including sex toys, alcohol products, ashtrays, condoms, drug-related items, weapons, knives, toilet paper, and diapers. There are no penalties for student organizations that submit trademark licensing requests that are rejected.
The Trademark Office licenses ISU marks to recognized student organizations that espouse controversial ideas, activities, or lifestyle choices without the assumption that the University supports or endorses any of those ideas, activities, or lifestyle choices. Defendants acknowledge that licensing a trademark to a student group does not mean that ISU takes a position on what the group represents.
The record includes illustrations of groups and related issues that some may view as controversial. The Trademark Office has approved designs submitted by CUFFS, a sexual bondage student club and recognized student organization at ISU, to license University marks on their apparel. ISU's recognition of CUFFS as a student group was controversial, as was CUFFS' use of the University's marks…. [The] Trademark Office has also approved designs by the LGBTAA, a recognized student organization that supports the rights of gay, lesbian, bisexual, and transgender people, … [as well as] groups including: Iowa State University Students for Life, an anti-abortion group; ISU College Republicans; Iowa State Democrats; ISU Tea Party; the Navy Marine Corps Drill Team, including designs with Cy the Cardinal holding a rifle; the American Society of Biosystem Engineers, including designs with Cy the Cardinal holding a sword; the Iowa State University Fencing Club, including designs with Cy the Cardinal leaning on an epee; the Rifle and Pistol Club; and the ISU Trap and Skeet Club, including designs with Cy the Cardinal holding a shotgun….
When the ISU chapter of the National Organization for the Reform of Marijuana Laws submitted the design below, the university at first approved it.
But after the Des Moines Register ran an article picturing a NORML ISU official wearing a T-shirt with the design, various people (including political figures) complained. The university then changed its Guidelines
to clarify that ISU marks could not be used to suggest promotion of certain items, including illegal drugs, and to state under Section 3d that ISU's name and marks could not be used to imply support or endorsement of a particular position on matters of public concern. Section 6e provides as follows:
No designs that use University marks that suggest promotion of the below listed items will be approved: dangerous, illegal or unhealthy products, actions or behaviors; firearms and weapons in a manner which is illegal, dangerous, harmful or destructive to humans; drugs and drug paraphernalia that are illegal or unhealthful; alcohol consumption in an illegal or unhealthful manner, or which is inconsistent with University policy and programs; gambling/gaming; sexual conduct, imagery, inferences or adult industry paraphernalia; or tobacco products or tobacco usage.
In today's decision in Gerlich v. Leath, a federal district court held that Iowa State violated the First Amendment. [UPDATE: See also the Des Moines Register story about the decision.] The court stressed that the First Amendment broadly protects university student speech, including by protecting it against viewpoint-discriminatory denial of benefits:
In Healy v. James, a student group was barred from forming a recognized chapter of the Students for a Democratic Society, a national organization that advocated leftist politics, because the school disagreed with the group's political activities. In holding that the college could not deny official status to the group, the Supreme Court stated that "[t]he College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent."
Similarly in Rosenberger v. Rector, the Supreme Court held that a public university may not deny student activity funds to a group on the basis of its members' beliefs. There, the University of Virginia was found to have impermissibly withheld student activity funds—made up of mandatory student fees—to a campus group primarily because the group discussed a particular religious view in its newspaper publication…. Viewpoint discrimination is especially dangerous on university campuses, because "[f]or the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation's intellectual life, its college and university campuses."
The Eighth Circuit has addressed viewpoint discrimination in the college setting in Gay & Lesbian Students Ass'n v. Gohn, 850 F.2d 361, 362 (8th Cir. 1988), in which a University of Arkansas student group that advocated for gay and lesbian rights (GLSA) was denied funding by the university. The GLSA had met all objective criteria to receive funding, all other groups that met the criteria had received funding, and there was no shortage of available funds. Some members of the student senate, which denied the funds, admitted that they voted against the GLSA receiving funds because of the group's views on homosexuality. Further, University officials were pressured by state legislators not to fund the GLSA or to support any opinions tolerant of homosexuality.
The Eighth Circuit noted that the GLSA did not advocate for any activity that was illegal but rather for a change in the law, and that even if it did advocate for illegal activity, its speech would still be protected by the First Amendment. The Eighth Circuit held the university's denial of funding was a form of viewpoint discrimination in violation of the First Amendment. Id. ("Conduct may be prohibited or regulated, within broad limits. But government may not discriminate against people because it dislikes their ideas, not even when the ideas include advocating that certain conduct now criminal be legalized.").
The court concluded that Iowa State's actions were based on NORML's viewpoint:
[T]he Court cannot agree that Plaintiffs' designs were rejected pursuant to viewpoint-neutral guidelines, which prohibit the use of ISU marks on designs that promote "dangerous, illegal or unhealthy products, actions or behaviors" or promote illegal drugs.
Defendants apparently previously applied the guidelines with flexibility, in one instance allowing designs with guns and swords—which apparently are not dangerous products under the guidelines—and in another instance prohibiting NORML ISU's designs, including designs with cannabis leaves—which presumably run afoul of the guidelines' ban on promoting illegal drugs. As was made clear in Gohn, there is a crucial difference between promoting an illegal activity and advocating for an activity or substance that is now illegal to be made legal. Plaintiffs did the latter, advocating for a change in the law, using the iconography of the national NORML organization.
Further, Defendants' assertion that their denials of Plaintiffs' designs were not politically motivated is unsupported by the record, which shows that Plaintiffs' political message, and a political reaction, was a driving factor behind Defendants' actions. So motivated, Defendants' conduct resulted in discrimination against Plaintiffs "on the basis of their ideology."
Before the ISU administration was contacted by [Steve Lukan, director of the Governor's Office for Drug Control Policy] and the Iowa House Republican Caucus Staff, Defendants' professed that groups were free to use ISU marks so long as they received approval from the Trademark Office, and that ISU did not endorse any group's views. Once Defendants began receiving pressure from Iowa political figures, though, they immediately took measures to ensure there would be no political controversy over NORML ISU's use of ISU marks. These actions were naturally predicated on the political content of the group's views….
[Steven Leath, the ISU president,] disagreed with the approval of NORML ISU's t-shirt design because it was better to "manage" controversies "on the front end," which suggests Leath thought it best to deny permission to groups with controversial views. Similarly, Leath felt it was important to be "sensitive to how people perceive things we do" on campus, explaining that he felt it was important to maintain good relationships with government officials. Thus, when Leath's office was contacted by several Iowa political figures, Defendants took action to preserve those relationships.
Iowa State argued that their licensing practices are a form of government speech, as to which the government may discriminate based on viewpoint (citing Walker v. Sons of Confederate Veterans, the Confederate battle flag license plate case); but the court disagreed:
First Amendment cases instruct that speech by collegiate student organizations facilitated by a state university is not government speech. See Bd. of Regents of Univ. of Wis. Sys v. Southworth (holding that a mandatory activity fee to fund student dialogue does not violate the First Amendment and noting as relevant that the University of Wisconsin had disclaimed that the student speech was its own); Rosenberger ("The distinction between the University's own favored message and the private speech of students is evident in the case before us.")….
[T]he Court cannot conclude that ISU's trademark regime, used with permission by hundreds of varied student groups, qualifies for the unique and narrow status of the public monuments at issue in Pleasant Grove City v. Summum or the license plates in Walker. Notably, the record is replete with statements by Defendants that they did not intend to communicate any message to the public by licensing ISU trademarks to student groups. E.g., Hill Tr. 33:25-34:14, P. App. 249-250 (Q. "The fact that approval for the use of a mark has been given says nothing about whether or not ISU supports the position of that organization, does it?" A. "That's correct."); Madden Tr. 53:14-22, P. App. 101 (Q. "So the fact that the University allows the use of marks or logos does not indicate endorsement of a student organization; is that right?" A. "That is correct."); Pls. Dep. Ex. 67, J. App. 105-107 ("[Receiving a trademark license] does not mean that [ISU] take[s] a position on what any of the organizations represent.").
Far from using its student group licensing program to communicate with the public, ISU remains staunchly neutral as to the professed views of its student groups, and exercises its power to deny licenses only when certain minimum standards of acceptability are not met (e.g., use of the marks on toilet paper and diapers). The Trademark Office's history of design approvals further demonstrates ISU does not license its trademarks to student groups to announce its political views, because the office has approved designs for an inchoate set of interest groups that are in one instance pro-life, then pro-BDSM, then pro-LGBTA, pro-Democrat, and pro-Republican. The Trademark Office's past practice thus makes clear that ISU does not grant licenses to political groups as a means of endorsing or expressing a particular view.
To be sure, and as the cited trademark cases suggest, trademarks are frequently used to associate a product or image with the mark's owner…. Yet to determine whether, in this case, the grant of a trademark license to a student group is intended as government speech, or whether the public would understand a student group's use of an ISU trademark as government speech, the Court must view ISU's trademark licensing program against the backdrop of America's educational culture and traditions.
As the Supreme Court noted in Rosenberger, American society regards its college and university campuses as "one of the vital centers for the Nation's intellectual life." In the public university context, "the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." In affording special First Amendment safeguards on university campuses, the Supreme Court has often noted "this Nation's dedication to safeguarding academic freedom," Healy, and has remarked that "[t]he essentiality of freedom in the community of American universities is almost self-evident," Sweezy v. New Hampshire.
In line with the university's traditional station in American society, when ISU licenses its trademarks to a multitude of student groups, the trademarks do not suggest ISU endorses any particular group's political views; rather, the use of the marks by a diverse and often intellectually opposed set of groups reflects the University's rightful commitment to fostering diverse forms of civic engagement and intellectual exploration and debate. Defendants' argument that ISU's licensed marks express the views of ISU itself runs counter to these traditions.
Nonetheless, Defendants argue that as a matter of fact, the public did associate NORML ISU's t-shirt design with the government, pointing to responses from certain public officials and the few responses received from the general public. On this record, the Court cannot agree that the public believed ISU promoted marijuana law reform, because the record shows almost no reaction to the Article from the general public….
Although ISU may use its trademarks to communicate with the public in some contexts, Defendants stated repeatedly that ISU does not intend to state any position, positive or otherwise, when it grants trademark licenses to its student groups. The Court finds no basis in the law or the facts of this case to conclude that public observers would infer ISU's endorsement.
Because American society regards its universities as incubators for intellectual experiment and exploration, the Court cannot conclude that observers would associate a student group's message, bearing an ISU icon, to represent the views of ISU. Rather, ISU's myriad student groups are rightfully understood to represent a jumbled mix of interests, views, and opinions, some mainstream and others offensive to conventional sensibilities, in the spirit of intellectual debate.
I think that political or artistic speakers have a First Amendment right to use others' trademarks as part of their message, even if the trademark owner is a private entity, or a public entity that denies permission on a viewpoint-neutral basis. That's certainly so as to the use of trademarks within movies ("The Coca-Cola Kid"), books, songs ("Lord, won't you buy me a Mercedes-Benz"?), and the like. See this post about Radiance Foundation v. NAACP for one example, though that case held for the speaker on statutory grounds, without having to reach the First Amendment argument.
I think the same should apply to political T-shirts, at least when reasonable people would recognize that the T-shirt conveys a political group's message and not the trademark owner's. But this court decision didn't have to deal with that argument, because the university's viewpoint discrimination provided an independent First Amendment basis for invalidating the university's action.
Congratulations to the Foundation for Individual Rights in Education and to Robert Corn-Revere, Ronnie London and Lisa Zycherman of Davis Wright Tremaine LLP, who represented the students through FIRE's Stand Up For Free Speech litigation project.