Federal Judge Orders Iowa State to Stop Censoring Marijuana Reform T-Shirts

Thanks to the First Amendment, NORML ISU members can wear cannabis leaves on their chests and backs.



As far as Iowa State University President Steven Leath was concerned, censoring the T-shirts of a campus group advocating the legalization of marijuana was simply good politics, a way of maintaining friendly relations with state officials. It was also clearly unconstitutional, according to a federal judge who last week told Leath and his subordinates to cut it out.

In October 2012, the ISU chapter of the National Organization for the Reform of Marijuana Laws (NORML) submitted a new T-shirt design to the school's Trademark Office. The front featured Cy the Cardinal, the university's mascot, leaning on the initials ISU with his head taking the place of the O in NORML. The back of the shirt said "Freedom is NORML at ISU" with a cannabis leaf above NORML.

Although the Trademark Office approved the design, that decision became politically problematic a month later after The Des Moines Register ran a story about marijuana legalization that included a photo of NORML ISU members wearing the T-shirts. Responding to complaints from state legislators and Iowa Gov. Terry Branstad's chief drug policy adviser, ISU officials effectively rescinded approval of the T-shirt by refusing to let the student group order more, changed the rules for using ISU trademarks, and subjected NORML ISU T-shirt designs to special scrutiny, rejecting any that featured Cy or cannabis leaves. 

"There are some issues that are clearly going to cause controversy and it's better to manage them on the front end," Leath explained in an internal email message. "My experience would say in a state as conservative as Iowa on many issues, that [Des Moines Register article] was going to be a problem." Leath said ISU administrators "should be very sensitive to how people perceive the things we do in and around campus." He added that "it would be unwise, it would be just foolish not to have a close working relationship with the top government official when you're a government entity." 

Those incriminating words came to light as a result of a 2014 lawsuit that NORML ISU members Paul Gerlich and Erin Furleigh filed against Leath and three other administrators with help from the Foundation for Individual Rights in Education. In response, U.S. District Judge James Gritzner had little trouble concluding that Leath's new T-shirt policy, which was clearly aimed specifically at advocates of marijuana legalization, amounted to politically motivated viewpoint discrimination, an obvious First Amendment no-no. "Plaintiffs' political message, and a political reaction, was a driving factor behind Defendants' actions," Gritzner wrote. "Defendants took action specifically directed at NORML ISU based on their views and the political reaction to those views so that Defendants could maintain favor with Iowa political figures. As such, the Court must conclude Defendants' conduct amounts to discrimination on the basis of Plaintiffs' viewpoint."

Since "content-based discrimination can be justified only if the government demonstrates that its regulation is narrowly drawn and is necessary to effectuate a compelling state interest," Gritzner said, ISU's censorship cannot be reconciled with the First Amendment. ISU did not even identify a compelling interest, let alone meet the rest of the test. Gritzner's solution: "Defendants are hereby permanently enjoined 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 similar cannabis leaf."

Gritzner, who earlier this month denied Leath et al.'s motion to dismiss the lawsuit, rejected their argument that they deserved qualified immunity because the relevant law was unclear. In light of Supreme Court and 8th Circuit rulings in this area, the judge said, "a reasonable person would understand that Defendants' actions treaded on Plaintiffs' First Amendment rights of political expression and association." Since the constitutional rights that Leath and his subordinates violated were clearly established at the time, they are personally liable for Gerlich and Furleigh's legal expenses. 

"We are gratified that the court understood that ISU bowed to political pressure when it imposed special restrictions on NORML ISU," said First Amendment lawyer Robert Corn-Revere, who represented Gerlich and Furleigh. "This violated the most basic First Amendment requirement that the government cannot discriminate against a student group or its members because it disagrees with their viewpoints. This decision vindicates the right to freedom of expression not just for the courageous students who brought this case, but for the students of all public universities."

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  1. “There are some issues that are clearly going to cause controversy and it’s better to manage them on the front end,” Leath explained in an internal email message.

    “We must restrain this speech prior to when it would reach impressionable minds. Any of my learned colleagues at this educational institution see a problem with that? No? Excellent, let’s do it!”

  2. He added that “it would be unwise, it would be just foolish not to have a close working relationship with the top government official when you’re a government entity.”

    At least he has his priorities straight.

    1. Unfortunately he does, government officials having that much leeway over institutions of higher learning, how could it go wrong? Other than the obvious violates of the first amendment…

      1. If it makes you feel any better, over in Georgia, at least one state legislator has declared that the schools need to get their act together when it comes to funding. http://www.washingtonexaminer……le/2581395

        So the colleges can go forward with article IX sham trials for federal funding, or they can get state funding for actual trials, but they can’t have both.

  3. Suck my joint, ISU.

  4. I am not really clear on what is going on here. From what I can gather:

    The school has a trademark management office that allows students/student groups to design shirts using the school’s name and/or logo which the school then approves and prints up? Who could have seen this coming? The school stepped in a pile on this one.

    I have only ever seen schools print up two or three official t-shirts and that’s it. If you want your own shirt go to the screen printer and knock yourself out, but don’t use the school’s logo.

    1. Yeah, this is a strange case. I’m not sure how deciding not to license your logo for someone’s political advocacy t-shirt is censorship. I can’t imagine going to any other college and getting approval for a Democrat or Republican t-shirt.

      Texas is at the top of the licensing heap or NCAA paraphernalia. I really can’t imagine them licensing their logo to the RNC or DNC. I suppose they had a bit of an “all comers” kind of policy – which really makes no sense. Most schools tightly control their licensing – even little division III schools.

      If this doesn’t hing on Iowa State’s individual program, but rather on the larger question of state schools determining the content of t-shirts bearing their official logo, are we about to see some sort of forced licensing of all NCAA logos? How else could this work? North Carolina wants Nike to sell a crap-ton of their merchandise and pay hefty royalties, so they have to allow some anti-abortion nutjob to make a t-shirt with their official Tar Heel logo over an aborted fetus?

      1. Yeah. Or to a pro-abortion nutjob with their official Tarheel logo over an aborted fetus.

      2. Here is a quick and dirty.

        ISU has rules for allowing recognized student groups to use of specific trademarks to represent their organizations (typically the old school Cy or ISU written out in the university’s font). This is probably due to the fact that ISU is a public, land grant institution. Licensing to merchandisers and income producing groups has different rules.

        NORML ISU’s original design was submitted and approved for production by approved screen printers. Shirts were made, articles were written about them, then the Iowa Republican Caucus and state’s Office of Drug Control Policy contacted ISU and leaned on them to fix this. ISU bent the knee to in short order.

        The approval was rescinded, the group was order to stop producing shirts, the group’s faculty adviser was removed and replaced with one of ISU’s top administrators, and all requests to produce promotional material were to be reviewed top administrators. Shortly following these actions student group policies were rewritten with clear references to NORML ISU’s positions.

        No other student group on campus has had to wade through such chilling bureaucracy to use student group trademarks. This includes a sex bondage club, shooting clubs, fencing clubs, ISU Democrats, ISU Republicans, ISU anti-abortion groups, etc.

        All of the student groups referenced above use ISU’s marks without recourse. A federal judge found this to be viewpoint discrimination and if you know the whole story he is clearly correct.

  5. The worst part of this article, “Responding to complaints from state legislators”. Of course, because at the end of the day the folly is with the electorate. Legislators know they can score cheap points by being a “warrior” against certain boogeymen, (pot being a big one). It’s a good article, shows how silly censorship is today and how the court system is, at least for now, still a good bastion of constitutionalism. Of course that is lesser so the case every day, but this kind of story still holds my confidence over a little bit.

  6. While the court found that ISU’s actions and policies were “unconstitutionally discriminatory as applied to Plaintiffs,” it did not find ISU’s trademark policy to be facially unconstitutional because student groups are not punished for submitting t-shirt designs that are later rejected by ISU. As a result, the court did not find a sufficient chilling effect on other student groups to support invalidating the policy as written on First Amendment grounds.

    So then, NORML ISU gets a free pass to trademark whatever cannabis-related design they can come up with, but other students could still fall to the same de facto censorship? (And don’t tell me administrators wouldn’t be foolish/arrogant enough to try again.) NORML students should try a design with the Islamic prophet smoking a doob, just to see what happens.

    1. ” NORML students should try a design with the Islamic prophet smoking a doob, just to see what happens.”

      These are late model Americans you reference, bro. Powerful rebellious balls swing rarely between young American thighs. One could posit that middle-finger balls are, in fact, an autonomous bounding resource lost to the crushing headwinds of bureaucratic progress.

      1. It’s what happens when you obey dry bigots and refer to dole-sucking socialists by the name reserved for manly repealers of prohibition: liberals.

      2. Powerful rebellious balls swing rarely between young American thighs.

        They did sue their school to use its mascot to promote a message those power didn’t want out there.

        1. I posit that messing with the Muslim Jesus is an entirely different matter, FoE.

    2. No free pass. No reference to cannabis consumption would fly (depiction of “unhealthful or harmful actions” are a no-go). The group’s focus always has, and continues to be, law reform.

      Due to the media attention the design received, NORML ISU, not other groups, was faced with defacto censorship while all other clubs went on with their business. No other group has reported said discrimination.

      Will administrators try it again….probably, but barring substantial short-term memory loss I don’t see the student body forgetting about this anytime soon. As a drawn out issue multiple student body presidents, the faculty senate, and the university paper’s editorial board were all aware and/or gave input of the issue.

      1. Thank you for your posts that provide more context. But I’m still left with the feeling that it’s not all that cut and dried.

        I think you would acknowledge that ISU does indeed have control over the use of its marks and lays down a set of restrictive rules. These rules you mention are arbitrary and subjective: “tasteful”, no “unhealthful or harmful actions” depictions. These rules would never pass 1st Amendment muster if applied in other contexts.

        So, is the key here that ISU must treat all similarly situated student groups the same under their rules? If ISU had had a pre-existing rule that said that the marks could not be used in any way that promoted drug use or drug legalization, then that would have been legal, it seems.

        1. This is part of a larger pissing match which includes administrators referring to a NORML leader as Hitler, arguments over transparency for student office spaces, the forced removal of their staff adviser, persistent monitoring of the group’s twitter feed and facebook pages, etc. Basically, after multiple tiffs (beginning with the shirt), the group sought legal advice and pushed back hard.

          As you said, everyone needs to be treated the same. “Tasteful” was part of the original arbitrary and subjective policy which NORML’s design was approved under. During the winter break immediately following all this hooplah, new arbitrary and subjective policies were written to include “unhealthful or harmful”. This was then leveraged to rescind any pre-existing approvals containing depictions of a cannabis leaf.

          Do the words cannabis, marijuana, or the image of a cannabis leaf directly incite or encourage drug use? The answer is no. ISU wants it to be yes. At one point, the group even met resistance to spelling out the acronym for NORML because the word “marijuana” would break the new illegal or unhealthful rule.This is ever more ironic when you can find ISU Extension documents which depict and promote the production of cannabis for WW2.

          If they had originally included that restrictions to promoting law reform they could’ve legally declined the shirt, but that would also extend to every political group on campus (likely 100’s).

          1. I should say that I am not a lawyer…I’m just a civil liberties advocate.

            These are my own interpretations based upon the lengthy legal decision and having witnessed some of this first hand. Its 45 pages and can certainly clarify anything I may have missed or misunderstood.

  7. We had the same prohibitionist fanaticism at U. of Texas in Austin. Sometime after FDRs third consecutive victory over the Prohibition Amendment, school officials began taking down group photos of God-fearing KKK, WTCU and Anti-Saloon League coaches, profs and regents. Bevo, the non-alcoholic brew Anheuser Busch pushed with help from the school and police in the 1920s and later, became a bad word. Real beer was still a banned narcotic in parts of Travis County and 91 entire counties in 1956. To save face the authorities concocted a cock-and-bull story about the Aggies (Texas A&M) beating out football team (as usual) and then taking a branding iron to mark our mascot Bos Taurus with the 13 X 0 score. Outraged athletes, the story goes, grabbed their branding irons and wrought more BBQ on the beast, thereby editing the brand on the beef to read BEVO, thus avoiding mention of anti-pot Anheuser the Hun or its nonalcoholic liquid.

  8. “There are some issues that are clearly going to cause controversy and it’s better to manage them on the front end,” Leath explained in an internal email message.

    “Therefore all Iowa State students, faculty, and staff must be fitted with chastity belts.”

  9. The fucking rigidity and boundary-imposing nature of people who naturally coalesce into positions of authority wildly available within all organized human activities reveals a revulsion toward the carefree and lively.

    Organize a crowd and place a distinct hierarchy over them and the recipe for domination percolates directly to the top of the bubble which now seeks out other bubbles to conjoin in an effort to solidify and promote the power of the bubble. All these fucking governing bubbles gathering submitted crowds into their bubbly stretching warm rainbow bullshit connect like pseudo-judicious suds further enhancing the power of the governing bubbles. Fuck with a bubble and it splatters dreaded micro-suds bullets endangering other power bubbles.

    Exactly why superiors managing bubbles hate being fucked with.

    The power bubble elites simply hang together like a sudsy flock of fragile shimmering transparent warts to ward off potential pokings, proddings, and societal jitters.

    The governing bubbles of law enforcement and well-educated college administrators lose governing capacity when they are forced to operate as separate units rather than as merged bubble stations boosting each others shine.

    1. Turn that into a poem and it will be even more cool.

  10. Normally I gleefully cheer when FIRE wins a case, but this time I’m not sure what to think.

    What is the purpose of a trademark if not to control the uses of it and messages associated with it? Like others mentioned above, can not any group now use Cy to promote their causes? Say, the local chapter of the KKK or NAMBLA? Or even worse, Hillary Clinton?

    It seems like this case extinguishes the whole idea of a trademark. Perhaps I’m missing something. Maybe government entities shouldn’t be able to trademark things in the first place.

    Full disclosure: I’m an alum of ISU and have fond memories of smoking hooch in the dorms while attempting to cover the smell with burnt toast.

    1. The trademark issue is a deflection since the school asserted additionally, and more importantly, that it maintained the right to prohibit speech that promotes illegal drug use.

      1. Well, yeah. You and I disagree with ISU on that. But that was my point. ISU doesn’t want Cy associated with NORML and the cannabis leaf. They own the trademark on Cy. What is the point of the trademark if the school can’t control the uses of it?

        What if a group came along and wanted to make a shirt that has Cy dropping a nuke on Mecca that says, “Death to all Muslims!”? Can they prohibit that?

        The issue of trademark is completely independent of the message at hand.

        1. This is a free speech case, and ISU has tried to reframe it as a trademark issue all along the way including several motions which were all dismissed for being baseless.

          While they own the trademark, they made their own rules allowing recognized student groups to use a few select marks as long as it is done tastefully and within their defined rules. Once they received political complaints, they broke their own rules, rewrote them to be more confining, and charged two top administrators with providing unprecedented oversight of the groups actions.

          Your religious suggestion wouldn’t fly under the old or new policies, but NORML’s designs did…at least until political alarms were set off.

          See more details in my comment above.

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