Mizzou’s Control Over Its Trademarks Does Not Extend to Control Over Student Speech

Last week’s press release from FIRE regarding the University of Missouri’s (Mizzou’s) censorship of the campus chapter of the National Organization for the Reform of Marijuana Laws (MU NORML) prompted a few FIRE supporters to write in to say that this time we got it wrong. We carefully consider every email we receive but are sure that the university’s censorship of MU NORML’s T-shirt designs is unconstitutional viewpoint discrimination. Admittedly, arguing that students have a right to depict a marijuana leaf next to a school’s name is not as straightforward as insisting that they be able to hand out copies of the Constitution on Constitution Day. But we’ve dealt with the pot leaf question on several campuses and have sponsored a successful lawsuit over the issue, so it seems worthwhile to explain our reasoning.

Universities exist to provide a forum for the exchange of ideas, and a vast range of opinions are represented on campus. For example, at Mizzou, registered student organizations include MU College Republicans and MU Tigers for Universal Health Care. Similarly, the university sponsors the MU Baha’i Association, the MU Buddhist Association, and the MU Skeptics, Atheists, Secular Humanists and Agnostics. It would be logically impossible for Mizzou to endorse the views of all these groups, even though it lends its name to each one.

The U.S. Supreme Court has been clear that students do not speak for their university when they express their views. In Widmar v. Vincent (1981), the justices ruled that public universities could not prevent student religious groups from using campus facilities, rejecting the argument that allowing access would be a state endorsement of religion in violation of the First Amendment’s Establishment Clause. Here too, MU NORML’s use of the university’s name does not send any message about Mizzou’s endorsement of their goals; it simply reflects that Mizzou has created a forum within which their expression occurs.

More recently, Iowa State University (ISU) censored the T-shirt designs of the university NORML chapter and is now appealing a federal judge’s decision that doing so not only violated the First Amendment but also was such a blatant abrogation of the students’ rights that the administrators should be held personally liable. Alliance Defending Freedom, representing various Christian groups, filed a friend-of-the-court brief supporting the NORML ISU students, realizing that if ISU were allowed to censor a marijuana leaf today, claiming it implied an endorsement of drug legalization, it would be able to censor a religious symbol tomorrow using the same rationale. In the university context, allowing a student organization to affiliate with the school supports the overall mission of intellectual inquiry, but it is not an endorsement of any particular view.

Mizzou has failed to keep in mind that MU NORML is not advocating illegal drug use. It is advocating for a change in the law that would make marijuana use legal. The core purpose of the First Amendment is to protect that kind of advocacy. Marijuana legalization is a controversial topic, but that’s why the voices of its advocates need the protection of the First Amendment.

Mizzou wants to do more than remove its name from MU NORML’s T-shirts. As Chief Judge James E. Gritzner pointed out in refusing to dismiss the parallel ISU case, “Simply because the allegations involve the use of Iowa State University’s licensed trademarks does not take away the suit’s constitutional nature.” Mizzou wants to dictate how MU NORML’s members can advocate for a cause they believe in and, in the process, muffle the group’s message. As a public university—and thus a government entity—Mizzou doesn’t get to turn the volume up and down depending on the content of a group’s message. And content matters. In the ISU case, the record demonstrated that when students were forced to produce plain T-shirts with just the group’s name on them, sales went down, reducing the group’s income and its ability to advocate.

Finally, this issue is far from “frivolous,” as one critic put it. Battles over key constitutional principles sometimes appear in small packages in out-of-the-way places. Just ask Mary Beth Tinker, who was sent home from middle school for wearing a black armband—a scrap of cloth—to mourn the dead on both sides of the Vietnam War. As Mary Beth recalled in a recent FIRE video, a simple act of defiance by her 13-year-old self, her brother, and a friend in a Des Moines middle school eventually turned into a landmark First Amendment decision, Tinker v. Des Moines Independent Community School District (1969), which established that students have First Amendment rights. The MU NORML students fighting for their T-shirt design are now part of this tradition.

Please urge Interim Chancellor Hank Foley at Mizzou to stop censoring MU NORML’s speech. Much more than a T-shirt design is at stake.