Iowa State University Loses Marijuana T-Shirt Case
Monday, February 13, 2017 at 8:07PM
[Neal Hutchens]

As reported in The Des Moines Register (available here), a federal appeals court has ruled that Iowa State University officials violated students' First Amendment rights in blocking their printing of T-shirts with a design that contained the school's mascot and a marijuana leaf. The students belonged to a student organization that advocated the legalization of marijuana use under state and federal laws. The opinion from the U.S. Court of Appeals for the Eighth Circuit is available here.

The university sought to block the production of the T-shirts on the basis that it could control distribution of images trademarked by the university, even if it allowed other student organizations to use such images. Iowa State permitted student organizations to use the institution's mascot and other trademarked images if certain conditions were satisfied. Initially, the institution gave permission for the student group to use the mascot image on its T-shirt. After media coverage about the group's planned use of the university's mascot garnered negative attention, including from lawmakers, institutional officials moved to revoke permission for the group to use the mascot on its T-shirts. The university argued that political push back did not inform the decision to deny the students use of the mascot, but the court did not accept these arguments. Instead, the court determined that institutional officials had engaged in impermissible viewpoint discrimination by seeking to revoke the use of the mascot based only on concern or disagreement with the student group's views on the legalization of marijuana.

The university argued that even if officials engaged in viewpoint discrimination, they committed no violation of the students' First Amendment rights because the "trademark licensing regime should be considered government speech."  As such, according to the university, it could, via its trademark rights, control the use of university images by student organizations (i.e., permitting use by student groups offering views condoned or favored by institutional officials). However, according to the court, the "government speech doctrine does not apply if a government entity has created a limited public forum for speech."  Having created a limited public forum for student speech in which students could use images trademarked by the university, the institution could then not pick and choose messages with which it agreed and disagreed in allowing students to use trademarked images.

Article originally appeared on Highereducationlaw.org (http://www.highereducationlaw.org/).
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