When I was a technology law reporter, I covered quite a bit of litigation involving the clash of intellectual property law and the First Amendment. It involved stuff like file-sharing websites (how quaint!) and Google search ads.
That’s why I’m amused to see how a judge handles claims that a pro-marijuana T-shirt can be considered “government speech.”
Iowa State University marijuana activists passed their first legal hurdle this week in forcing the school to let them wear pro-pot T-shirts that include a school logo.
It’s the first case in the Foundation for Individual Rights in Education’s Stand Up for Speech project in which a judge has ruled, FIRE said – three other targeted schools have already settled.
Iowa State lost every argument in its bid to get the case thrown out, and the judge even ruled that President Steven Leath can be sued in his personal capacity.
Cy the cardinal wants you to smoke bud
The school changed its trademark rules in the middle of the game, after the local media ran a story featuring the ISU-approved shirts.
The school chapter of the National Organization for the Reform of Marijuana Laws (NORML) had initially gotten permission to sell shirts with its logo, school mascot Cy the cardinal and a small marijuana leaf.
ISU panicked after the media coverage because it said the shirts implied the school itself supported legalized marijuana. Its revised trademark rules banned designs with university marks that include “drugs and drug paraphernalia that are illegal or unhealthful.”
NORML ISU’s interactions with the school trademark office got fairly ludicrous over the next year and a half.
When it submitted a new design without Cy the cardinal, the school rejected it again, saying it represented “a call to action” that could be misconstrued as the university’s own position. When NORML ISU spelled its name “in ink that was varied to create an outline of a marijuana leaf” in another proposed design, the office said that promotes an illegal drug.
This whole time, the school also denied the club its choice of adviser, with the head of student affairs filling the role and allegedly “impeding” the club’s “dissemination of its message.”
This isn’t high school, folks
Federal judge James Gritzner said there’s no infringement issue at hand, perhaps the school’s best chance to beat back the suit.
Several judicial precedents “hold that college administrators cannot control the speech of campus groups … by denying the group a university benefit provided to other groups,” just because they disagree with the groups’ messages, Gritzner said – even if that message is currently illegal.
On the government-speech claim, Gritzner said it was “undetermined whether a college organization’s t-shirt is speech controlled by the state university or private speech controlled by the organization,” so he let the students’ lawsuit continue in that respect. Gritzner did note that “other cases suggest that speech by collegiate student organizations is not government speech.”
In one of the most notable rulings, Gritzner said ISU can’t treat its students like they were in high school: The Hazelwood and Morse precedents, often used by principals to censor high school newspapers, don’t apply to a public university, “which presents characteristics of a public forum.”
Don’t direct your subordinates to harass a club
ISU officials aren’t off the hook either, Gritzner said. Ruling on their claim of “qualified immunity,” the judge said the students “sufficiently” allege facts “indicating that a reasonable college administrator would know that restricting students’ speech based on viewpoint is a constitutional violation.”
President Leath can be sued because he allegedly directed his subordinates to harass the club, and the students’ claims for monetary damages aren’t barred by “sovereign immunity,” the judge added.
In a final stinging rebuke, Gritzner said the students aren’t under any obligation to “exhaust all administrative remedies” – basically, get the continual runaround from the trademark office – before suing, as the school claims.
FIRE said discovery in the case – the exchange of documents and depositions – will keep going until June, with trial scheduled for December. I’m not holding my breath that ISU will last that long before pursuing a settlement.
It’s a bit hard to believe that Iowa, which voted twice for Barack Obama and has had gay marriage for nearly six years, is so uncomfortable with marijuana that ISU’s fundraising is the least bit endangered by Cy the cardinal standing next to a marijuana leaf on a T-shirt.
School officials’ behavior with these activists is simply an exercise in raw power, couched in the boring technical language of intellectual property law.
Greg Piper is an assistant editor at The College Fix. (@GregPiper)
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IMAGES: NORML ISU, Internet screenshot
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