Last month, FIRE announced a victory in our Stand Up For Speech Litigation Project case against Iowa State University (ISU) for its viewpoint-based discrimination against the campus chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU). In that case, ISU selectively applied a policy specifically designed to prevent NORML ISU from printing T-shirts depicting a marijuana leaf along with ISU marks ranging from “Cy the Cardinal” to the letters “ISU.” On January 22, a federal judge ruled that this violated the First Amendment rights of student-plaintiffs Erin Furleigh and Paul Gerlich and enjoined ISU from enforcing the policy against them.
This is great news, but what makes the ruling particularly threatening for would-be campus censors is that the district court rejected the claim from the named defendants—that is, ISU administrators—that they were entitled to qualified immunity. The court briefly explained this legal doctrine:
Public officials are entitled to immunity from claims brought against them in their individual capacities if their actions did not violate clearly established law of which a reasonable person in the officials’ position would be aware. Pearson v. Callahan, 555 U.S. 223, 231 (2009).
In other words, if the law isn’t well-established, administrators who violate students’ rights might be off the hook, at least when it comes to their own personal liability. But that’s only if the law isn’t well-established—and the First Amendment rights of public college students are very well-established. Fortunately, the court’s analysis of free speech law mirrors what FIRE has been saying for its entire existence: that in most cases, public college students’ free speech rights are clearly protected by longstanding law. Indeed, in a 2010 article for the Cardozo Public Law, Policy & Ethics Journal in 2010, my colleague Azhar Majeed conducted a thorough examination of qualified immunity doctrine and concluded that it should rarely apply in cases of college censorship.
As the district court in the ISU case summarized, “Courts have long afforded protection to First Amendment rights of students at public colleges and universities,” and “student groups may not be denied benefits on the basis of their espoused views.” Most critically, “[v]iewpoint discrimination is especially dangerous on university campuses,” which the Supreme Court has called “one of the vital centers for the Nation’s intellectual life” (quoting Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 836 (1995). The Supreme Court and the U.S. Court of Appeals for the Eighth Circuit, whose holdings bind the district court in this case, have emphasized these points time and again, in no uncertain terms. Senior District Judge James Gritzner’s opinion—particularly the section on qualified immunity—is a treasure trove of powerful and important statements of the law. For example, his opinion states:
“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (citing Cohen v. California, 403 U.S. 15, 24 (1971)).
In finding for the plaintiffs with respect to ISU’s application of its policies to NORML ISU, the district court relied in large part on ISU’s viewpoint-based motivation for treating NORML ISU differently from all other student groups on campus. ISU’s recently revised trademark policy prohibits the use of ISU marks with designs promoting “dangerous, illegal or unhealthy products, actions or behaviors.” The university, however, had allowed other student organizations to use ISU marks in conjunction with images of various guns and swords, and by controversial groups like CUFFS, the campus bondage club. Additionally, as the court noted, ISU began rejecting NORML ISU T-shirt designs only after members of the public and state officials objected to it. Accordingly, the court disagreed with ISU administrators’ defense “that [the students’ shirt] designs were rejected pursuant to viewpoint-neutral guidelines.”
FIRE was glad to see the district court find that ISU’s policies were not “immune from First Amendment scrutiny under the government speech doctrine,” a doctrine recently revisited by the Supreme Court in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). Last June on The Torch, FIRE’s Catherine Sevcenko wrote about the Court’s holding in Walker that specialty license plates constituted government speech and that the state could, therefore, reject designs on the basis of viewpoint. Catherine shared FIRE’s concern that this holding could be abused by college administrators attempting to censor student speech. And as predicted, ISU administrators argued that NORML ISU’s use of ISU marks converted the designs at issue to government speech—or speech that at least appeared to be ISU’s—over which ISU could lawfully exercise control.
The court rejected this argument, observing that “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.” Further, administrators had conceded that student groups’ use of the marks said nothing about ISU’s endorsement of the groups’ message.
In short, no matter how many times ISU administrators argued to the contrary, this case is overwhelmingly about viewpoint discrimination. And the law with respect to viewpoint discrimination is clear—clear enough that administrators who ignore the law should and will be held personally responsible for their violations of students’ rights. College administrators may not simply claim ignorance of the law in order to avoid taking responsibility for their unlawful actions.
This case marks the first time that a case coordinated by FIRE has resulted in a court piercing qualified immunity on free speech grounds. In 2012, the U.S. Court of Appeals for the Eleventh Circuit rejected a defense of qualified immunity with respect to the plaintiff’s due process rights in the case of Barnes v. Zaccari, which FIRE assisted by finding student-plaintiff Hayden Barnes legal counsel and filing two amicus curiae (“friend-of-the-court”) briefs.
On February 4, the ISU defendants filed a notice of appeal to the Eighth Circuit challenging the district court’s denial of qualified immunity. (Although the case is not over—the judge still has to determine damages and attorneys’ fees—the defendants may appeal the qualified immunity finding.) The appellate court should reaffirm the district court’s strong statements on the standards for qualified immunity.