Eighth Circuit reaffirms victory at Iowa State: School still can’t censor pot legalization T-shirts

Yesterday, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit reaffirmed and expanded upon a February opinion that gave FIRE’s Stand Up For Speech Litigation Project our biggest victory to date.

In February, the Eighth Circuit panel unanimously upheld a federal district court’s ruling to permanently bar Iowa State University from refusing a student group’s use of the school’s logos on T-shirts advocating marijuana legalization. Plaintiffs Paul Gerlich and Erin Furleigh were student leaders of ISU’s chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) when they challenged ISU’s decisions in a lawsuit filed on July 1, 2014, with assistance from FIRE.

In its opinion, the Eighth Circuit held that ISU administrators engaged in unconstitutional viewpoint discrimination in violation of the First Amendment by subjecting NORML ISU’s T-shirt designs to unusually heavy, politically motivated scrutiny when the group applied to use ISU logos under the school’s trademark policy.

In March, however, the panel granted a petition by defendants to reconsider its February ruling, vacated the opinion, and reopened the case.

The panel’s new opinion, issued yesterday, goes even further than the first in vindicating Gerlich, Furleigh, and NORML ISU’s First Amendment rights. Judge Diana Murphy, writing for the panel, reiterated the court’s earlier holding that ISU engaged in unlawful viewpoint discrimination when it responded to outside political pressure by subjecting NORML ISU’s proposed T-shirts to an unusual level of review, repeatedly denying the group’s designs.

Murphy also reiterated the panel’s earlier reasoning in rejecting defendants’ argument that its actions were lawful under the government speech doctrine. ISU’s trademark licensing regime was not government speech, she reasoned, where the school was not using it to speak to the public. Rather, ISU created a forum for a multiplicity of student messages — some of which are indeed contradictory — when it made its trademarks available to ISU’s approximately 800 recognized student organizations.

Murphy’s panel opinion went on to uphold the district court’s denial of qualified immunity to the defendant ISU administrators, leaving them personally liable for monetary damages. The panel held that plaintiffs’ right to be free from viewpoint discrimination under ISU’s trademark licensing regime was clearly established at the time such that reasonable administrators should have understood the implications of their actions. The opinion lays out an unequivocal, straightforward application of long-standing Supreme Court precedent on student group benefits to a university trademark licensing program. It makes clear that when a public college opens government property or offers a government benefit to all student groups, it may not discriminate in granting that access based on a group’s chosen message.

Judge James Loken agreed that ISU’s actions violated the First Amendment and would have supported a narrower grant of injunctive relief, but dissented from the panel’s holding on qualified immunity, citing uncertainty over whether the government speech doctrine might apply.  Judge Jane Kelly issued a concurring opinion joining the panel’s reasoning in full, but writing separately to address Judge Loken’s concerns.

“We are gratified the Eighth Circuit reaffirmed its earlier holding that the First Amendment does not permit state university officials to condition benefits based on the viewpoint of student groups,” said attorney Robert Corn-Revere, who, with his Davis Wright Tremaine colleagues Ronald London and Lisa Zycherman, represents Gerlich and Furleigh. “We look forward to bringing this case to a close, or, if ISU chooses to appeal, litigating the matter to a final conclusion.”

FIRE is thrilled with the Eighth Circuit’s decisive ruling upholding the right of students to be treated fairly and equally, even when advocating politically controversial ideas. This decision will benefit thousands of students across the Circuit’s seven states. We will be sure to keep you updated on further developments in the case.