The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From today's 8th Circuit decision in Gerlich v. Leath:
Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) had several of its trademark licensing requests denied because its designs included a cannabis leaf. …
ISU … [has] approximately 800 officially recognized student organizations. Student groups often create merchandise that contains the group's name and ISU insignia to generate awareness about the group's cause or attract members. Student groups may use ISU's trademarks on merchandise if ISU's Trademark Licensing Office (Trademark Office) determines that the use complies with ISU's Guidelines for University Trademark Use by Student and Campus Organizations (Trademark Guidelines). ISU's trademarks include word marks like "ISU" and "Iowa State," as well as logos, such as the school's mascot (Cy the Cardinal).
NORML ISU at first got permission from the Trademark Office to use a T-shirt "that had 'NORML ISU' on the front with the 'O' represented by Cy the Cardinal," with "Freedom is NORML at ISU" and a cannabis leaf depicted on the back. But after a Des Moines Register article mentioned the T-shirt, a state legislator and someone at the Governor's Office of Drug Control Policy heard about this and objected, and the University barred NORML ISU from printing further T-shirts with the design. After that, the University's Trademark Guidelines were changed to ban "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."
The 8th Circuit held that the university's rejection of NORML ISU's designs was unconstitutional:
If a state university creates a limited public forum for speech, it may not "discriminate against speech on the basis of its viewpoint." [Rosenberger v. Rector (1995).] A university "establish[es] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects." … A university's student activity fund is an example of a limited public forum. ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions.
The defendants' rejection of NORML ISU's designs discriminated against that group on the basis of the group's viewpoint. The state engages in viewpoint discrimination when the rationale for its regulation of speech is "the specific motivating ideology or the opinion or perspective of the speaker." … The defendants' discriminatory motive is evidenced by the unique scrutiny defendants imposed on NORML ISU after the [controversy arose]. …
Defendants argue that the political pushback that they received regarding T- Shirt Design #1 did not play a role in their decision making. This argument ignores significant evidence to the contrary. For example, [ISU President Steven] Leath testified that "anytime someone from the governor's staff calls complaining, yeah, I'm going to pay attention, absolutely." Leath also testified that the reason the Trademark Policy was on the president's cabinet meeting agenda which took place five days after the Des Moines Register article was published was "because we were getting pushback." Leath went on to testify that "[i]f nobody'd ever said anything, we didn't know about it, it didn't appear in The Register, we'd probably never raised the issue."
The record is also replete with statements from defendants regarding their political motives. Leath explained at his deposition that because T-Shirt Design #1 "had some political public relations implications," someone should have "run it up the chain" because "there are some issues that are clearly going to cause controversy and it's better to manage them on the front end." He also testified that "in a state as conservative as Iowa on many issues, … it was going to be a problem." [Senior VP for Student Affairs Thomas] Hill stated in an interview with the Ames Tribune that the reason student groups associated with political parties could use ISU's logos, but groups like NORML ISU may not, is because "[w]e encourage students to be involved in their duties as a citizen." Such a statement implies that Hill believed that the members of NORML ISU were not undertaking their duties as citizens by advocating for a change in the law.
[ISU Trademark Office Director Leesha] Zimmerman stated in an email to NORML ISU's faculty advisor in May 2013 that the group's design that included the statement "Legalize Marijuana" was rejected because "'Legalize Marijuana' is a call to action but it does not suggest any specific way your organization is making that happen." Zimmerman went on to say that the group's design applications "appear to have a certain shock or attention grabbing sensationalism." Zimmerman further stated that her "interpretation is that these do not further your cause as an advocate for change in the laws or trying to change the public's perception of marijuana." There is no evidence in the record of Zimmerman offering advocacy advice to any other student group. …
The university also argued that, even if it "did engage in viewpoint discrimination," this was permissible "because the administration of the trademark licensing regime should be considered government speech." But the court disagreed:
When the "government speaks, it is not barred by the Free Speech Clause from determining the content of what it says." Walker v. Tex. Div., Sons of Confederate Veterans, Inc. (2015).
The government speech doctrine does not apply if a government entity has created a limited public forum for speech. As noted above, ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. The administration of its trademark licensing regime therefore did not constitute government speech.
Even if the trademark licensing regime here did not amount to a limited public forum, however, the government speech doctrine still does not apply on this record. The Walker decision considered three factors when determining whether certain speech is government speech. First, it determined whether the government has long used the particular medium at issue to speak. Second, it analyzed whether the medium is "often closely identified in the public mind with the" state. Third, it determined whether the state "maintains direct control over the messages conveyed" through the medium.
The first two factors do not apply to the speech at issue in this case. ISU allows approximately 800 student organizations to use its trademarks. Defendants repeatedly stated in their testimony and other record evidence that the university did not intend to communicate any message to the public by licensing ISU trademarks to student groups. Indeed, the university licenses its trademarks to groups that have opposite viewpoints from one another like the Iowa State Democrats and the ISU College Republicans. Even if ISU's trademark licensing regime were to satisfy the final factor, the factors taken together would not support the conclusion that the speech at issue in this case is government speech because ISU does not use its trademark licensing regime to speak to the public.
My students Ian Daily, Eric Sefton and Sydney Sherman and I filed an amicus brief on behalf of the Student Press Law Center arguing in favor of this result.