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 Terry Branstad's chief drug policy adviser, ISU officials effectively rescinded approval of the T-shirt by refusing to let the student group order more, changed the rules for using ISU trademarks, and subjected NORML ISU T-shirt designs to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."