Important questions about the state of free speech on campus are still evolving in Iowa, where FIRE recently announced a victory after a federal court ordered Iowa State University (ISU) to stop using its trademark policy to censor the T-shirt designs of the campus chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU). The university’s administrators have appealed the part of the decision that could make them personally liable for the damages suffered by the students. Meanwhile, they are attempting to suspend enforcement of the district court’s order while their appeal is considered. These efforts suggest that ISU is willing to spare no expense in defending its unconstitutional policy of censoring its students.
Former NORML ISU student-leaders Erin Furleigh and Paul Gerlich have been battling with the university over their group’s T-shirt design, which depicted ISU mascot Cy the Cardinal’s head in the place of the “O” in NORML, along with a marijuana leaf. In 2012, ISU administrators approved the T-shirt design but later rescinded that approval following criticism from state officials and members of the public. ISU also adopted and enforced new regulations specifically designed to restrict NORML ISU’s ability to engage in political advocacy. In the following years, ISU rejected a number of NORML ISU’s other T-shirt designs, including one that simply said “NORML ISU Supports Legalizing Marijuana,” under its new, hastily-drawn policy. Furleigh and Gerlich made the decision to sue ISU in July 2014 as part of FIRE’s Stand Up For Speech Litigation Project.
In January, the U.S. District Court for the Southern District of Iowa ruled in favor of the students, concluding that the administrators had engaged in viewpoint discrimination when they censored the group’s T-shirts. The court issued an injunction ordering the campus administration to cease enforcing the policy against NORML ISU.
More importantly, the court ruled that the administrators could be held personally liable for violating the students’ First Amendment rights and determined that the case should move forward to determine personal liability and damages. That decision could have significant implications for campus censorship nationwide. ISU administrators believed they should be entitled to “qualified immunity,” under which government officials (including state university administrators) performing their job duties are immune from damages in a civil suit unless they violate an individual’s clearly established constitutional rights. The court rejected that argument, finding that the First Amendment’s prohibition on viewpoint discrimination in the university context is well-established. (For more on the qualified immunity holding, click over to our earlier coverage here on The Torch.)
The administrators have since appealed that part of the decision to the United States Court of Appeals for the Eighth Circuit in what is known as an “interlocutory appeal,” because the issue of qualified immunity has to be resolved before the case can move forward. As the Supreme Court of the United States explained in Mitchell v. Forsyth (1985), the issue of qualified immunity is “too important to be denied review”; if the appellate court reverses the district court and holds that qualified immunity applies, there would be no point in holding a damages trial, which is the next step in the case.
Because the appeal will take some time, ISU wants to continue enforcing the trademark policy while the court resolves the qualified immunity appeal. In a motion filed last month, the administrators asked the court to suspend enforcement of the injunction, which would allow them to continue their viewpoint discrimination against NORML ISU until the Eighth Circuit resolves the appeal. In a victory for the students and for free speech, the court rejected the administrators’ argument. This ruling would allow NORML ISU to design and distribute T-shirts without administrative censorship.
In reaching that decision, the district court made a number of points that demonstrate its firm recognition of free speech rights on college campuses. Most importantly, the court said it was unlikely that the administrators would succeed in their appeal to the Eighth Circuit with their argument that the student organization’s T-shirt is government speech. This is an important point because it echoes what FIRE has been saying for a while—the use of the university’s official trademarks on a student group’s promotional materials does not suggest that the university supports the message of the student group. FIRE made this argument in our amicus brief filed in the recent Supreme Court case of Walker v. Sons of Confederate Veterans, Inc. (2015), which addressed the question of whether Confederate flags on license plates constitute government speech.
The district court rejected the ISU administrators’ argument that the T-shirts bearing an ISU trademark are government speech, which would be immune from First Amendment analysis. This has never been true in a university setting, as Judge James E. Gritzner clearly articulated. The administrators’ reliance on the idea that student group speech is somehow also government speech (despite the often conflicting views of various recognized student groups, like College Democrats and Republicans, or pro-choice and pro-life groups) confirms FIRE’s fear, echoed by Justice Samuel Alito, that university officials will attempt to censor campuses by latching onto the Supreme Court’s decision in Walker. As Justice Alito wrote in his dissent in Walker:
What if a state college or university did the same thing [sell space for private messages] with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.
At ISU, the very scenario about which Justice Alito warned is unfolding, as the university officials are trying to use Walker’s precedent to justify obvious viewpoint discrimination.
Judge Gritzner also found that NORML ISU would be irreparably harmed if ISU did not have to obey the injunction because, as the Eighth Circuit said in the 2013 case Johnson v. Minneapolis Park & Recreation Board, “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” The court concluded that the public interest would not be promoted by suspending enforcement of the order, and it dismissed the ISU administrators’ request.
Yet ISU administrators show no signs of letting up, as just yesterday they decided to seek a stay in the Eighth Circuit. Having failed in the district court, they are now asking the Eighth Circuit to suspend enforcement of the injunction and allow them to engage in viewpoint discrimination against NORML ISU pending the outcome of their appeal of the qualified immunity issue. For those keeping score, that’s two filings now pending in the Eighth Circuit to keep a pot leaf off a T-shirt, paid for by the people of Iowa. ISU appears ready to spare no taxpayer expense in limiting NORML ISU’s First Amendment rights.
Alfonse Muglia is a FIRE Stand Up For Speech Litigation Project intern.