Federal Court to ISU: Stop Censoring Pot Shirts [Updated]

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The main T-shirt design under litigation in the Gerlich v. Leath case.

Preventing an Iowa State University student group from printing T-shirts promoting the reform of marijuana laws on trademark grounds was a violation of students’ free speech rights because the decision wasn’t applied in a viewpoint-neutral fashion, the U.S. District Court for the Southern District of Iowa ruled Friday.

In July 2014, Erin Furleigh and Paul Gerlich, two former presidents of ISU’s student chapter of the National Organization for the Reform of Marijuana Laws, filed suit against the university for changing its policy on student groups’ use of ISU trademarks after, in October 2012, it had approved a T-shirt design featuring the head of the school’s mascot, Cy, in place of the “O” in NORML, with the words “Freedom is NormL at ISU” under a pot leaf on the back. (Friday’s ruling, contrary to some local media reports, does not mean NORML ISU can use this design again; see below for more on that.) The lawsuit alleged that ISU administrators switched gears in response to political pressure, “after state officials and some members of the public complained about its political message advocating the legalization of marijuana.”

In response to concerns that the shirts gave the perception that ISU supported easing pot laws, Friday’s court order explains, university trademark policy was changed in January 2013 to include a tier system allowing only university-sponsored, but not simply recognized groups like NORML and other political groups, to use the Cy logo. The policy was also amended to include the following section:

No designs that use University marks that suggest promotion of the below listed items will be approved: dangerous, illegal or unhealthy products, actions or behaviors; firearms and weapons in a manner which is illegal, dangerous, harmful or destructive to humans; drugs and drug paraphernalia that are illegal or unhealthful; alcohol consumption in an illegal or unhealthful manner, or which is inconsistent with University policy and programs; gambling/gaming; sexual conduct, imagery, inferences or adult industry paraphernalia; or tobacco products or tobacco usage.

The pushback was sparked by a Nov. 19, 2012, Des Moines Register article that appears to no longer be available online but, according to ISU’s trademark licensing program director Leesha Zimmerman via the court ruling, included a remark that NORML ISU’s then-president Josh Montgomery said “his group has gotten nothing but support from the university.” Montgomery was also photographed by the Register wearing the shirt with the Cy image. The extent of the resulting complaints is not entirely clear: By the following day, ISU President Steven Leath had received only two emails about it and the university relations inbox just one.

 

Other emails outlined in the ruling, between ISU administrators, explain how the university initially responded to the article. Warren Madden, ISU’s senior vice president for business and finance, wrote that administrators were “getting some push back regarding the Register article.” Leath later wrote that “there are some issues that are clearly going to cause controversy and it’s better to manage them on the front end.” Citing the Capitol Hill experience of his chief of staff, Miles Lackey, Leath wrote that the university “should be very sensitive to how people perceive the things we do in and around campus.” He added that “it would be unwise, it would be just foolish not to have a close working relationship with the top government official when you’re a government entity,” and that “my experience would say in a state as conservative as Iowa on many issues, that it was going to be a problem.”

ISU subsequently told NORML ISU they could no longer use the Cy-logo shirts and that a reorder request would not be approved. After a review of the group, Madden also found that its adviser was an ISU custodian, which was not permitted under student organization rules. Thomas Hill, the university’s now-outgoing senior vice president for student affairs, stepped in as the group’s interim adviser to prevent it from ceasing to exist.

In February 2013, ISU was contacted by Steven Lukan, the staunchly anti-drug director of the state’s Office of Drug Control Policy, after Montgomery invited Lukan to a pot reform event his group had organized. In response, Lukan shot an email to Leath to “express concern that ISU trademarks were being used to advocate for the legalization of marijuana.” Leath instructed Hill to hold a meeting with Montgomery, during which Hill recommended that Montgomery apologize to Lukan for what Montgomery, according to the ruling, later acknowledged was a “disrespectful” email. He did. (Read Lukan’s thoughts about the push to expand access to an opioid-overdose drug here.)

That same month, Eric Cooper, an associate professor of psychology and a libertarian who for years has been a perennial candidate for local political offices, became NORML ISU’s permanent adviser. However, the group also kept on Hill, not wanting to get on his bad side because his approval was required for future T-shirt designs.

Hill that month approved text-only designs including the words “NORML ISU” but in March rejected designs with images of pot leaves and demanded that the group also remove an image with a pot leaf from its Facebook page. The following year, more design images were rejected by Zimmerman, in the trademark office, for a variety of reasons: a THC molecule, after she “conferred with a chemistry teacher and determined the molecule was incorrectly depicted”; a phased-out Punching Cy logo, because it wasn’t allowed for use any longer by anyone; and the image featured at the top of this post, because it “suggested promotion” of illegal drug use. This process is what led to the lawsuit, which contended that the university was holding NORML ISU to standards different from other groups in the same tier because of its political views.

Another design rejected by ISU administrators
Another design rejected by ISU administrators

In his ruling Friday, Senior District Judge James Gritzner agreed, writing that the “development of First Amendment doctrine in the university context has repeatedly affirmed that student groups may not be denied benefits on the basis of their espoused views” and concluding that the university indeed “took action specifically directed at NORML ISU based on their views and the political reaction to those views so that Defendants could maintain favor with Iowa political figures.”

Gritzner also dismissed ISU’s argument that the Cy-logo shirts created the public perception that the university backed pot-law reform, “because the record shows almost no reaction to the Article from the general public.” However, he rejected an argument from NORML ISU’s attorneys that the trademark policy change was unconstitutionally vague. They had argued that other approved logos, including ones from Army ROTC and BDSM student groups and groups practicing dangerous sports like rodeo, boxing, and rugby, could fall under its definitions. (On page 45 of the ruling, Gritzner noted that ISU specifically argued that the word “promote” was not unconstitutionally vague, citing a federal campaign finance ruling struck down on other grounds by the Supreme Court’s notorious Citizens United decision in 2010.)

Because Gritzner didn’t strike down the policy revision, the ruling does not indicate that NORML ISU can start again printing Cy-logo shirts like those that sparked the controversy back in 2012, contrary to local news reports. The ruling does, however, find that ISU implemented and enforced the policy changes against the group in violation of its right to free speech. It orders that the university be permanently prohibited from applying the policy in a “viewpoint discriminatory manner” and from preventing NORML ISU “from producing licensed apparel on the basis that their designs include the image of a similar cannabis leaf” as the one in the image at the top of this post.

In response to the ruling, ISU released a short statement late Friday afternoon: “Today’s U.S. District Court opinion in the NORML case is disappointing. Iowa State University will consult with the Iowa Attorney General’s Office to determine if the decision will be appealed.”

In a press release, Robert Corn-Revere, one of three D.C. lawyers representing Gerlich and Furleigh, said, “This decision vindicates the right to freedom of expression not just for the courageous students who brought this case, but for the students of all public universities.”

The lawsuit was part of the Stand Up For Speech Litigation Project launched by the Philadelphia-based Foundation for Individual Rights in Education, which could not be reached for comment Friday.

FIRE is also the organization that criticized University of Iowa officials in December 2014 for removing a work of art by visiting assistant professor Serhat Tanyolacar from campus grounds that was placed there without prior approval. Although Tanyolacar said the artwork, featuring news clippings about racial violence on a Ku Klux Klan robe, was intended as a commentary on race relations, the university issued an apology for the “divisive, insensitive and intolerant” display that made black students “feel terrorized and to fear for their safety.”


Editor’s note: This article has been updated and expanded to explain the case’s background and court’s ruling in more detail, and to clarify confusion over the T-shirt design with the Cy mascot logo.

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Gavin Aronsen is an editor and reporter for and founding member of the Iowa Informer. He previously worked as a city reporter for the Ames Tribune, research assistant to investigative journalist Wayne Barrett at the Village Voice, and in various roles at Mother Jones, where his work contributed to a National Magazine Award nomination for the magazine's digital media coverage of the Occupy Wall Street movement. Email: garonsen [at] iowainformer [dot] com.