Paul Gerlich and Erin Furleigh of NORML ISU stand outside the United States District Court for the Southern District of Iowa.
Amidst the student protests taking place across the country this week, a protest of a different kind was playing out in a federal courthouse in Des Moines, Iowa. A year and a half ago, Paul Gerlich and Erin Furleigh, members of the Iowa State University (ISU) chapter of the National Organization for the Reform of Marijuana Laws (NORML), filed a lawsuit against the university alleging ISU is using its trademark policy to stifle their advocacy for marijuana legalization. With the help of FIRE, the two are now holding high-level administrators—including ISU President Steven Leath—to account.
As Torch readers may recall, this lawsuit was one of the four that officially launched FIRE’s Stand Up For Speech Litigation Project. Here are the basic facts, as summarized on our case page for the litigation:
In 2012, NORML ISU received university approval for a group T-shirt that featured ISU mascot Cy the Cardinal’s head in place of the “O” in NORML. Following criticism from members of the public and state officials, the university not only rescinded approval for the T-shirt, but it adopted and enforced new regulations specifically designed to restrict NORML ISU’s ability to engage in political advocacy.
In both 2013 and 2014, the university rejected other T-shirt designs, including one that simply said “NORML ISU Supports Legalizing Marijuana,” under the hastily-drawn policy that broadly prohibits student groups from associating the ISU name with promoting “dangerous, illegal or unhealthy products, actions or behaviors” and “drugs and drug paraphernalia that are illegal or unhealthful.” This pretextual justification conflicts with how ISU treats other student groups and demonstrates that ISU’s new policy violates the First Amendment by confusing political advocacy with illegal conduct.
In response to the complaint, ISU asked federal judge James E. Gritzner to throw out the case on the grounds that the university had a right to control its trademarks and that it was not a free speech issue. In January, the judge rejected that argument, allowing the case to go forward.
In the intervening months, Erin and Paul’s lawyers—prominent First Amendment attorney Robert Corn-Revere and his colleagues Lisa Zycherman and Ronnie London from the law firm Davis Wright Tremaine—interviewed numerous administrators under oath, including Dean of Students Thomas Hill and President Steven Leath. All had to justify why they revoked the approval for the original T-shirt and—to the extent possible—explain why the abrupt revision of the trademarks policies to prohibit “dangerous, illegal or unhealthy products, actions or behaviors” was anything but an attempt to silence NORML ISU. And yes, in case you were wondering, ISU’s football team, sky-diving club, and even the (aptly-titled) BDSM group Cuffs have not had their use of ISU’s trademarks challenged.
Wednesday, the parties argued before Judge Gritzner, with each side explaining why it should win the case without a trial because the law supports its position, also known as summary judgment. For two hours, Corn-Revere and ISU’s lawyer took turns trying to convince Judge Gritzner that the law mandated a decision in favor of their respective clients.
The legal doctrines in this case are important, but the hearing was also a chance to tell Paul and Erin’s story, which is a classic tale of political pressure and bureaucratic overreach resulting in censorship of disfavored views.
On November 19, 2012, a story appeared in the Des Moines Register about NORML ISU. The article was accompanied by a photo of NORML ISU’s founder, Josh Montgomery, holding a NORML T-shirt with ISU mascot Cy the Cardinal.
The story set off a rapid chain of events at ISU. Within hours, Brad Trow from the Iowa House Republican Caucus Staff contacted ISU regarding the article. Trow’s call was followed by an inquiry from the Governor’s Office of Drug Control Policy that evening. By 3 p.m. on the day the story was published, President Leath had inquired into whether the trademark authorization could be revoked. By 4 p.m., the issue of NORML ISU and revision of the trademark guidelines had been placed on the agenda for the university cabinet meeting scheduled for November 26. Three days after that meeting, NORML ISU’s leadership was informed that Dean of Students Tom Hill was replacing their group adviser, that approval for their Cy the Cardinal T-shirt had been revoked, and that Hill would have to pre-approve any future designs before they were submitted to the trademark office.
At the hearing, ISU’s lawyer, Tyler Smith, argued that the reaction to the article was nothing out of the ordinary because senior administrators frequently consult on short notice. He added that the trademark guidelines were updated every few years and that a review was already in the works. When the judge asked if the timing of the guidelines review were a coincidence, Smith responded that ISU’s reaction may have had a political aspect but the plaintiffs were “harping” on that point.
After the new guidelines were implemented, six of 12 NORML ISU T-shirt designs were rejected, largely because they contained graphics of a cannabis leaf. Under the supervision of senior university officials, Director of Trademark Licensing Leesha Zimmerman disapproved one T-shirt design because it was “sensational” and also denied approval of a T-shirt with the word “censored” on it. She made suggestions for revising the slogan of another, and rejected a design featuring a THC chemical molecule because she said the chemistry department had deemed it to be incorrect. When ISU’s lawyer maintained that none of these actions were taken because of political pressure, Corn-Revere countered that when someone in the state capitol “had the sniffles, President Leath sneezed.”
In spite of these actions, ISU argued that Erin and Paul did not have standing—that is, they had no right to bring a claim as individuals rather than on behalf of the ISU NORML chapter. (There’s nothing unusual about a standing dispute—government agencies frequently argue that plaintiffs have no right to sue them.) Although ISU argued that individual students had no right to use ISU’s trademark and thus the denial of T-shirt designs did not harm them, Corn-Revere countered with a litany of landmark First Amendment student cases such as Rosenberger v. Rector and Visitors of the University of Virginia (1995), Healy v. James (1972), and Widmar v. Vincent (1981), all of which involved single students standing up for the rights of student organizations with which they were affiliated.
Since it was filed, Gerlich v. Leath has taken on greater significance because it is the first case to explore the application of the Supreme Court’s decision last summer in Walker v. Sons of Confederate Veterans, which held that specialty license plates are government speech. Thus, the Supreme Court determined, Texas could refuse to approve license plates with messages of which it disapproved. When Corn-Revere started to address the application of Walker by saying that “nothing suggests” that Walker was meant to apply to a university setting, Judge Gritzner interrupted, saying, “I’m ahead of you on that one,” explaining that he was really interested in ISU’s lawyer’s explanation of how the narrow holding in Walker could pertain to this case.
ISU counsel Smith argued that ISU maintained “editorial control” of its marks even after granting authorization for their use. Just as the Sons of Confederate Veterans could not force Texas to associate itself with the Confederate battle flag by placing it on a speciality license plate, NORML ISU, Smith argued, could not force the university to associate its mark with a cannabis leaf, which was a symbol of drug use. The government has the right to withhold its imprimatur, he said, be it authorizing a monument in a park or a state name on a license plate. Here, according to Smith, the imprimatur was the use of Cy the Cardinal.
Erin and Paul were particularly frustrated that ISU’s lawyer repeatedly argued that ISU should have the right not to associate its trademarked name with a cannabis leaf, asking why administrators thought they were entitled to decide on their own that the letters ISU should not be near a graphic of a cannabis leaf. As Erin pointed out, students were the heart and soul of the university and the 500 students who were members of NORML had a right to express their opinion that marijuana legalization was something they supported.
Overall, the two sides presented very different visions of the case. ISU’s lawyer said the case was about whether ISU had to associate its mascot Cy the Cardinal with a “pot leaf.” Corn-Revere countered that the case turns on the proposition that a public university can’t limit access to benefits based on the unpopular viewpoint of the student-speaker. He said that ISU was “trimming” the expressive rights of students and then claiming it didn’t matter because NORML ISU was still able to function—an argument Corn-Revere likened to taking just a few books out of the library and then claiming it’s not censorship.
After the hearing, Erin told FIRE she wanted to “thank the judge for taking us seriously.” And Judge Gritzner clearly did, taking careful notes throughout the hearing and posing thoughtful questions to both sides. For those two hours, the playing field between student and administrator was finally level. As Erin observed later, the hearing was a lesson to the ISU administration that “student voices matter.”
Litigation can be a long process. As Paul remarked, it can be a tough undertaking, but he added, “I’d tell any student thinking about litigation that it’s worth it.” Litigation is another way to speak truth to power, and it is one of the most effective ways to create lasting change. If Paul and Erin win, not only will all 36,001 students at ISU directly benefit, but so will the students at surrounding colleges and universities. For students who believe in an issue passionately and whose voice has been muffled, FIRE’s Stand Up For Speech project can and should be an option.
Thanks to Erin, Paul, and the team at DWT, FIRE’s Stand Up For Speech Litigation Project is about to reach a new milestone: its first decision on the merits. (So far, seven out of the 10 schools have simply settled.)
As soon as we hear about a decision, we’ll report it here.