Judge Denies Motion To Dismiss Suit Against ISU

January 7, 2015

By Melissa Erickson at Ames Tribune

This story has been updated to include a statement from an Iowa State University spokeswoman and to reflect that the three lawsuits filed by the Foundation for Individual Rights in Education (FIRE) against public universities that have since been settled were against Modesto Junior College (Calif.), University of Hawaii-Hilo and Citrus College (Calif.).

A federal judge has denied Iowa State University’s request to dismiss a lawsuit filed against the university and four of its administrators by a marijuana advocacy student group.

In a 19-page order filed Tuesday, Chief Judge James E. Gritzner rejected ISU’s “creative argument” that the case really alleges trademark protection issues rather than violations of free speech.

“While that may be the issue in quite different factual circumstances, the Court must conclude it is not the issue at bar,” Gritzner wrote.

The lawsuit was filed in U.S. District Court for the Southern District of Iowa last July by Paul Gerlich and Erin Furleigh, two student members of ISU’s chapter of the National Organization for the Reform of Marijuana Laws, or NORML. It alleges that ISU administrators used the university’s trademark policies to bar the group from using ISU logos on their organization’s T-shirts.

NORML ISU was founded in spring 2012, and claims a membership of more than 500.

During a hearing at the U.S. Courthouse in Des Moines in November, attorney Robert Corn-Revere argued on behalf of NORML ISU that the university took other steps against the group — revoking prior T-shirt approval, changing ISU’s trademark guidelines to prohibit the use of the word “marijuana” or any images relating to marijuana, not approving two additional shirt designs and removing the group’s faculty adviser — in an attempt to control the group’s political message.

ISU is represented in the case by the Iowa Attorney General’s Office. At the November hearing, Assistant Attorney General Tyler Smith argued that NORML ISU has no First Amendment right to use the university’s trademarks, and that ISU’s trademarks and their use are a form of government speech.

“Courts have long afforded protection to First Amendment rights of students at public colleges and universities,” Gritzner wrote in his order.

“Like the entitlement to funding, one of the benefits of being a school-approved student organization at Iowa State University is the ability to use the school’s name and logo for certain purposes,” he wrote, citing case law that found universities cannot deny a student group benefits based on the group’s message, even if it advocates something illegal.

Gritzner found that NORML ISU has given “sufficient factual allegations to create a plausible claim for relief for violations” of their rights to free speech.

Gritzner said it was “undetermined” whether a college group’s T-shirt is speech controlled by the university or by the group.

“At this stage of the litigation, the government speech doctrine cannot preclude (NORML ISU’s) claims from moving forward,” he wrote.

The judge also rejected ISU’s request to have all of the claims against ISU President Steven Leath dismissed because the lawsuit “does not allege that Leath violated (NORML ISU’s) rights by any of his own misconduct.”

Gritzner wrote that while a government official cannot be held liable for unconstitutional conduct by their subordinates, “the complaint alleges sufficient conduct by Leath himself that violates Plaintiffs’ constitutional rights.”

The other defendants named in the case are Vice President for Business and Finance Warren Madden; Vice President of Student Affairs Tom Hill; and Leesha Zimmerman, program director of ISU’s trademark licensing office.

“We believe the determination is very preliminary, and that Iowa State University should retain the right to administer its own trademarks,” ISU spokeswoman Annette Hacker said Thursday morning.

A jury trial has been scheduled for Dec. 14, 2015. It is estimated to last four to five days.

FIRE celebrates judge’s order

NORML ISU’s lawsuit is being supported by the nonprofit group Foundation for Individual Rights in Education, or FIRE. FIRE officials celebrated the judge’s ruling Wednesday, releasing a statement that the group was “very pleased” with Gritzner’s decision not to dismiss the case.

“FIRE looks forward to a successful outcome that affirms ISU students’ right to freely advocate for their beliefs,” FIRE President Greg Lukianoff said in the statement.

NORML ISU’s case was one of seven lawsuits FIRE has helped file against public universities as part of their Stand Up for Speech Litigation Project. In their statement Wednesday, the group noted that three other lawsuits in the project have since been settled “in favor of free speech,” and included a total of $210,000 in fees and damages.

Those cases were against Modest Junior College (Calif.), University of Hawaii-Hilo and Citrus College (Calif.).

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Schools: Iowa State University Cases: Iowa State University – Stand Up For Speech Lawsuit