Iowa State University administrators have requested that a federal court stay a ruling last month determining that they violated a student group’s free-speech rights by prohibiting the use of university logos on T-shirts with an image of a marijuana leaf, a document filed Friday with the U.S. District Court for the Southern District of Iowa shows.
The request followed an amended appeal filed Wednesday by Attorney General Tom Miller, who is representing ISU in the case, in response to District Court Judge James Gritzner’s Jan. 22 ruling in favor of the students’ marijuana law reform organization NORML ISU. Specifically, the appeal argues that case law precedent should allow the university broad latitude over control of its trademarked logos as “government speech”; and disputes Gritzner’s denial of qualified immunity — exemption for state officials from individual liability over the violation of constitutional rights — for President Steven Leath, outgoing Senior Vice President for Business and Finance Warren Madden, outgoing Senior Vice President for Student Affairs Tom Hill, and trademark licensing program director Leesha Zimmerman.
The amended appeal also contests the injunction granted to plaintiffs Erin Furleigh and Paul Gerlich, former NORML ISU presidents, ordering that ISU must immediately stop rejecting the student organization’s use of university logos based on its viewpoints. Initially, ISU filed two appeals on Jan. 4, one of them requesting an interlocutory review — a partial appeal of a court ruling before all claims are resolved — of the government speech question, which the university argued the case hinges on and was wrongly applied in a final judgment issued for the plaintiffs on Jan. 25.
Gritzner denied the interlocutory review appeal on Wednesday on the basis that a lack of case law on what constitutes protected government spech was not adequate grounds for ISU’s argument that there was a substantial difference of opinion over the issue in this case. Subsequently, the university submitted the amended appeal later that day.
In his Jan. 22 ruling, Gritzner concluded that ISU violated the students’ First Amendment rights by how it changed university policy on student groups, in part to prevent them from using its logos alongside the portrayal of “dangerous, illegal or unhealthy products, actions or behaviors” and “drugs and drug paraphernalia that are illegal or unhealthful,” among other things. ISU administrators decided to act after facing pressure from conservative state lawmakers and and Iowa drug czar Steven Lukan, who raised concerns that a NORML ISU T-shirt with an image of university mascot Cy that was featured in the Des Moines Register could give the public the impression that ISU supported changing drug laws. (There is scant evidence to support this, Gritzner said in his ruling.)
In the motion to stay, ISU argued: “The effect of the order and injunction would be to compel Defendants to license ISU trademarks to be co-branded with other non-university trademarks (National Organization for Reform of Marijuana Laws) a pot leaf, which is a widely (though perhaps not unanimously) recognized symbol of illicit drug use, and legislative proposals, which ISU is prohibited from endorsing.”
The policy change also established a student organization tier system that still prohibits NORML ISU and similar politically oriented groups connected to but not sponsored by the university from using the Cy logo. But because the policy changes specifically targeted the group’s marijuana reform message, as evidenced by ISU administrators rescinding approval of the NORML ISU Cy-logo shirt and subsequent designs without Cy, Gritzner ruled that ISU didn’t apply the change in a viewpoint-neutral fashion.
According to the case’s civil docket, responses to ISU’s motion to stay are due by March 7. Robert Corn-Revere, a D.C. attorney representing NORML ISU, told reporters last week he doesn’t think the university has a case and expects the motion to be denied.
ISU’s amended appeal:
ISU’s motion to stay:
