Not Your NORML College T-Shirt

Many thanks to my partner Dan Burke for sending this case my way.  It poses (and answers) the question whether a public university may withhold its logo from a student organization of which it apparently disagrees.  The answer is apparently no.  

Paul Gerlich and Erin Furleigh are residents of Ames, Iowa, and students at Iowa State University. NORML ISU is the ISU student chapter of the National Organization for the Reform of Marijuana Laws (NORML), a political group that advocates for reform of federal and state marijuana laws. Gerlich and Furleigh are members of NORML ISU.

ISU owns federally registered trademarks, including word marks such as “Iowa State University,” “Iowa State,” “ISU,” “Cyclone,” and “Cy,” as well as logos, such as Cy the Cardinal (Cy) graphics and Cy the mascot. ISU student and campus organizations may use ISU’s trademarks, including “ISU,” “Iowa State University,” and other marks, consistent with their recognized status with the University, if the Trademark Office determines that their use complies with the University’s licensing guidelines. The Trademark Office will not license ISU marks for certain items it considers a liability risk or as inappropriately portraying the University’s image, including sex toys, alcohol products, ashtrays, condoms, drug-related items, weapons, knives, toilet paper, and diapers.

In October 2012, NORML ISU submitted a design (T-Shirt Design #1) to the Trademark Office that displayed the name of the organization on the front, with the “O” in “NORML” represented by the head of the ISU mascot, Cy the Cardinal. The shirt’s back read “Freedom is NORML at ISU” with an image of a small cannabis leaf above “NORML.” The group planned to use the shirts for publicizing their message and fundraising.

Initially, the ISU Trademark office approved the design.  That apparently caused some political backlash from the Iowa House Republican Caucus, which led to a number of events, culminating in ISU revoking its approval for the re-order of the shirts.  Gerlich and Furleigh felt that ISU’s actions violated their First Amendment rights.  And that led to the lawsuit. 

The court framed the issue as whether public university students could be denied benefits on the basis of their espoused views. And the answer is no. To allow a public university to pick and choose among messages is to allow “viewpoint discrimination” which violates the First Amendment. Once the court framed the question that way, the decision was virtually a foregone conclusion. 

And ISU’s case was not helped by several facts.  First, its prior decisions allowing certain shirts called into question just how concerned it really was with promoting a “healthy lifestyle.”  The school had previously permitted the campus “CUFFS” organization – a group that promotes sexual bondage — to use the trademark. 

Second, ISU’s contention that its decision was not politically motivated rang hollow given the clear evidence that it reversed course only after getting the squeeze from the House Republican Caucus.

ISU’s decision to cave into the political pressure resulted in an award of summary judgment to the students, a permanent injunction and an award of costs and attorney fees.  The student plaintiffs get the added benefit of forever being able to tell all who will listen about how they successfully stuck it to the man.  Which is in and of itself pretty awesome.