Tuesday, February 14, 2017

This is not NORML: court of appeals finds ISU violated First Amendment with TM licensing program

Gerlich v. Leath, No. 16-1518 (8th Cir. Feb. 13, 2017)

Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) had several of its trademark licensing requests denied because its designs included a cannabis leaf.
The first shirt that became problematic

later rejected design

Two members of NORML ISU sued for violations of their First and Fourteenth Amendment rights; the court of appeals affirmed a permanent injunction with reasoning relevant to the pending Tam case: student groups’ use of ISU logos couldn’t possibly be government speech because there are so many of them, including conflicting ones like ISU Democrats and ISU Republicans. I get that argument for trademark registrations in general, but it seems weaker here, because ISU’s logo is the logo of an arm of state government, and I do think a government can reasonably say with its speech “we agree that X and Y are in-bounds, while Z is out-of-bounds.” Allowing ISU Democrats and ISU Republicans to use the logos but not ISU White Nationalists seems like the state controlling its brand. This is not to say that the overall conclusion is wrong, especially given ISU’s litigating position, but the district court’s opinion did a far better job of explaining why that might be.

ISU has approximately 800 officially recognized student organizations, including NORML ISU. Organizations can use ISU’s trademarks on merchandise if ISU’s Trademark Licensing Office determines that the use complies with ISU’s Guidelines for University Trademark Use by Student and Campus Organizations.

In 2012, NORML ISU submitted a t-shirt design to the Trademark Office that had “NORML ISU” on the front with the “O” represented by Cy the Cardinal. On the back the shirt read, “Freedom is NORML at ISU” with a small cannabis leaf above “NORML.” The Trademark Office approved this design. Then, the Des Moines Register published a front-page article about legalization efforts, in which it quoted NORML ISU’s president stating that “his group has gotten nothing but support from the university. He even got approval from the licensing office to make a NORML T-shirt …” The article also had a photo of the T-shirt.

The person in charge of the trademark office provided ISU’s PR office with a statement that ISU didn’t take positions on what student organizations stand for. Thus, the statement continued, the claim that “his group has gotten nothing but support from the university” was “a bit misleading. He may be confusing recognition of the group as the university ‘supporting’ it.”

Then, an Iowa House Republican caucus staff person sent a formal legislative inquiry to ISU’s State Relations Officer asking whether “ISU’s licensing office approve[d] the use of the ISU logo on the NORML t-shirt” pictured in the article. This led higher-ups to ask if they could “revoke” the approval of the T-shirt design. Then, someone from the Governor’s Office of Drug Control Policy emailed and called the head of ISU’s government relations office about the article, indicating that he was “curious about the accuracy of the student’s statement cited in the report, and perhaps the process used by ISU to make such determinations.” The head of ISU’s PR office responded that NORML ISU’s use of ISU’s trademarks was “permitted under the policies governing student organizations.” The email went on to say, “[h]owever, this procedure is being reviewed.”

Next, NORML ISU’s request for permission to use the design for another shirt order was put on hold, which was unprecedented in anyone’s memory. The ISU board decided to change the trademark guidelines, and ISU told NORML ISU that they were concerned that the T-shirt caused confusion as to whether ISU endorsed the group’s views regarding the legalization of marijuana. Thus, the Trademark Office would not approve of any t-shirt design that used ISU trademarks in conjunction with a cannabis leaf. They also told the group that it needed prior review before submitting any designs to the Trademark Office, again an unprecedented requirement. The new Trademark Guidelines prohibited “designs that suggest promotion of the below listed items . . . dangerous, illegal or unhealthy products, actions or behaviors; . . . [or] drugs and drug paraphernalia that are illegal or unhealthful.”

After that, the Trademark Office rejected every NORML ISU design application that included the image of a cannabis leaf, as well as designs that spelled out the NORML acronym but replaced “Marijuana” with either “M********” or “M[CENSORED].” The Office did approve designs without a cannabis leaf that simply stated the group’s name and fully spelled out the NORML acronym.
also rejected: Cy the Cardinal holding a marijuana leaf
The district court entered a permanent injunction against “enforcing trademark licensing policies against Plaintiffs in a viewpoint discriminatory manner and from further prohibiting Plaintiffs from producing licensed apparel on the basis that their designs include the image of a . . . cannabis leaf.” The university created a limited public forum “by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects.” A student activity fund is an example of a limited public forum, and so is ISU’s choice to make its trademarks available for student organizations to use if they abided by certain conditions.

Rejecting NORML ISU’s designs was impermissible viewpoint discrimination, as evidenced by the “unique” scrutiny ISU imposed on NORML ISU after the Des Moines Register article. ISU argued that it wasn’t unique because the hockey club was also subject to additional oversight over its trademark applications, but that was because the hockey club mismanaged funds and misrepresented itself as an intercollegiate sport. Also, the hockey club was not required to receive preapproval of its designs by two ISU senior vice presidents, as NORML ISU was. No other student group was rejected for fear that the university would be seen as endorsing a political cause. Defendants pointed to six other rejections on anti-endorsement grounds, but four of those were rejected because it appeared ISU was endorsing a corporate logo; another design suggested that a club sport was an official athletic department sport; and another was rejected because it appeared that ISU was endorsing the views of the Students for Life club, but a minor change allowed it to be approved.

ISU implausibly argued that the political pushback it received didn’t play a role in decisionmaking. But defendant Leath testified that “anytime someone from the governor’s staff calls complaining, yeah, I’m going to pay attention, absolutely,” and that “[i]f nobody’d ever said anything, we didn’t know about it, it didn’t appear in The Register, we’d probably never raised the issue.” Both individual defendants’ motives were political in that they wanted to avoid controversy “in a state as conservative as Iowa.” Defendant Hill told the Ames Tribune that the reason student groups associated with political parties could use ISU’s logos, but groups like NORML ISU may not, is because “[w]e encourage students to be involved in their duties as a citizen.” But that statement implied that Hill believed that the members of NORML ISU were not being good citizens by advocating for a change in the law. The person in charge of approving student requests told NORML ISU that the group’s design applications “do not further your cause as an advocate for change in the laws or trying to change the public’s perception of marijuana.” As the court of appeals wryly commented, “[t]here is no evidence in the record of Zimmerman offering advocacy advice to any other student group.”

The administration of the trademark licensing regime wasn’t government speech because it was a limited public forum. Even if it wasn’t a limited public forum [and note the conceptual difficulties of calling a non-physical space a “forum”], the government speech doctrine didn’t apply. Walker v. Confederate Veterans asked (1) whether the government has long used the particular medium at issue to speak; (2) whether the medium is “often closely identified in the public mind with the” state; and (3) whether the state “maintains direct control over the messages conveyed” through the medium. [So, is the medium the trademark? Or the trademark licensing regime?]

The court found that the first two factors didn’t apply, which seems an odd characterization. If the medium is the trademark, then the government has definitely used it to speak; if it’s the trademark licensing regime, then the argument is weaker but not obviously weaker than that for license plates, where as here the relevant regime produces the state’s symbol coupled with the organization’s symbol. Both the trademark and the trademark licensing regime seem likely to be “closely identified in the public mind” with the state. But the court of appeals, as I noted in the intro, was compelled by the fact that ISU allows approximately 800 student organizations to use its trademarks, including groups with opposing viewpoints. The court did not analyze the Supreme Court’s treatment of similar facts in Walker. Here’s the district court’s distinction, which is not bad:

Because American society regards its universities as incubators for intellectual experiment and exploration, the Court cannot conclude that observers would associate a student group’s message, bearing an ISU icon, to represent the views of ISU. Rather, ISU’s myriad student groups are rightfully understood to represent a jumbled mix of interests, views, and opinions, some mainstream and others offensive to conventional sensibilities, in the spirit of intellectual debate.

I will say, however, that ISU rejected a lot of shirts in the past, mostly for sexual references but also for alcohol/firearms references, and I’m not sure why those rejections don’t (1) establish a lot of ongoing control over the licensing program, and (2) also now turn into unconstitutional acts.
rejected "How the Health Are You?" for double entendre

rejected for sexual references

The ISU club for kayaking received a number of rejections

rejected, double entendre

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