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ISU Gets a Lesson in the Difference Between Trademark Law and the First Amendment

On Monday, lawyers at Davis Wright Tremaine filed an opposition to Iowa State University’s (ISU’s) motion to dismiss the Stand Up For Speech lawsuit involving censorship of the school’s chapter of the National Organization for the Reform of Marijuana Laws (NORML). (It’s a pretty standard tactic for defendants in a First Amendment case to make a motion to dismiss the case.) ISU refused to approve certain of NORML ISU’s T-shirt designs that the school felt “had a certain shock or attention grabbing sensationalism” for various reasons including that the shirts featured a drawing of a cannabis leaf. The First Amendment, however, protects effective advocacy for a controversial point of view—and it’s hard to effectively advocate without grabbing some attention!

Iowa State also justified suppressing NORML ISU’s views on the grounds that the school needed to protect its trademarks. (ISU has trademarked “Iowa State University” and “ISU.”) The meat of Iowa State’s motion to dismiss, therefore, relies on the argument that the college has a right to protect its trademarks, and that NORML ISU had not shown that it was entitled to use the marks.

As the opposition states in the opening sentence, this argument “simply misses the point.”

ISU may wish to make this into a run-of-the-mill trademark case, but it’s not. It’s also not just about whether a group of students can wear a chosen T-shirt design. Rather, it’s about the question of whether and how students can engage in political speech at ISU. As the opposition to the motion to dismiss states, it’s “a case where university officials caved to political pressure out of embarrassment and a desire to restrict or control a student group’s political message.” And it’s worth noting that while ISU NORML’s complaint alleges three constitutional violations, the university addresses none of them in its motion to dismiss.

And for those who might be tempted to dismiss the case as just about wearing some T-shirts, it’s critical to remember that the landmark student free speech case, Tinker v. Des Moines Independent Community School District (1969), established that a high school could not prevent students from wearing black armbands—scraps of cloth—to protest the Vietnam War. In another seminal case, Cohen v. California (1971), the Supreme Court upheld the right of a protester to engage in, as an ISU administrator put it, “attention grabbing sensationalism” by wearing a jacket in a courtroom that said “Fuck the Draft.” Literally wearing your political beliefs on your clothes—even when the state doesn’t approve of those beliefs—is a cornerstone of free expression. The lawsuit gives the ISU student plaintiffs, Paul Gerlich and Erin Furleigh, the chance to join an exclusive group of people who have discerned when the right of free expression is at stake and who were willing to fight in court for that principle.

The next step is to wait for the court to rule. If the judge agrees that the First Amendment, rather than trademark law, is of primary importance in the case, then it will likely go forward. FIRE is optimistic that the judge will agree with the students’ position. And the university’s Associate General Counsel, Keith Bystrom, told the Iowa State Daily, “It would be very difficult and unlikely to get the entire case dismissed at this point." If the motion to dismiss is denied, ISU administrators will then have the opportunity to answer questions under oath during the discovery process about their reasons for suppressing ISU NORML’s message. Alternatively, they could settle the case by reforming ISU’s policies. It may take several months to get a decision from the court, but we’ll post the ruling on the motion as soon as we get it.

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