Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
Paul Gerlich v. Steven Leath
Citations: 861 F.3d 697; 123 U.S.P.Q. 2d (BNA) 1296; 2017 WL 2543363; 2017 U.S. App. LEXIS 10455Docket: 16-1518
Court: Court of Appeals for the Eighth Circuit; June 13, 2017; Federal Appellate Court
Original Court Document: View Document
Iowa State University (ISU) permits student organizations to use its trademarks under certain conditions. The student chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) faced multiple denials for trademark licensing requests due to designs featuring a cannabis leaf. Subsequently, two members initiated a 42 U.S.C. § 1983 action, claiming violations of their First and Fourteenth Amendment rights. The district court partially granted the plaintiffs' motion for summary judgment and issued a permanent injunction against the defendants, who appealed the decision. ISU, with over 36,000 students and around 800 recognized student organizations, allows groups to use its trademarks for merchandise to promote awareness and attract members, contingent upon compliance with ISU's Trademark Guidelines. Leesha Zimmerman, the director of ISU's Trademark Office, oversees this process. NORML ISU, officially recognized and refounded in 2012, initially submitted a t-shirt design featuring their name and ISU's mascot, Cy the Cardinal, which was approved by the Trademark Office. Following a front-page article on marijuana legalization efforts in Iowa, which included comments from NORML ISU President Josh Montgomery, Zimmerman affirmed the university's support for the group. She clarified that student organizations could use university trademarks if they adhered to the established review and approval procedures. The document outlines a series of communications and actions taken by Iowa State University (ISU) officials in response to concerns raised about a student group's use of ISU's trademarks. It notes that ISU comprises numerous organizations, and a statement suggesting that a particular group received unquestioned support from the university is deemed misleading. A formal inquiry from Iowa House Republican staff regarding the use of the ISU logo on a NORML t-shirt prompted discussions among ISU's leadership, including President Steven Leath and his chief of staff, Miles Lackey. Leath acknowledged that the agenda item arose from pushback related to a newspaper article, indicating that if the issue had not been publicized, it might not have been addressed. Leath sought advice on possibly revoking approval for the t-shirt design, expressing concern about potential political ramifications, especially in Iowa's conservative climate. Further communications revealed that the Governor's Office of Drug Control Policy raised questions about the process ISU used for approving the student's statement in the article. ISU's public relations office confirmed that NORML ISU's use of trademarks was allowed but noted that the procedure was under review. Subsequent requests from NORML ISU for additional t-shirt orders were put on hold pending a cabinet meeting, which ultimately concluded with a consensus that ISU's Trademark Guidelines needed revision due to concerns about confusion regarding the university's endorsement of the group's views on marijuana legalization. The Trademark Office informed a group that designs incorporating ISU trademarks with a cannabis leaf would not be approved and that prior approval from Madden and Hill was necessary for future designs. Zimmerman testified that this was the first instance of ISU implementing a prior review process for a student group's trademark application. NORML ISU's reorder of a specific t-shirt design was rejected on December 3. A revision to the Trademark Guidelines on January 16, 2013, prohibited designs that suggested the promotion of illegal or unhealthy products, including cannabis. This revision stemmed from external comments suggesting that a t-shirt design implied ISU supported NORML ISU's advocacy for marijuana law reform. Following the guideline changes, the Trademark Office rejected all designs featuring a cannabis leaf and those that replaced "Marijuana" with abbreviated forms. Conversely, designs omitting the cannabis leaf that simply stated the group's name were approved. In July 2014, Paul Gerlich and Erin Furleigh, then president and vice president of NORML ISU, respectively, filed a lawsuit against Leath, Madden, Hill, and Zimmerman, alleging violations of their First and Fourteenth Amendment rights under 42 U.S.C. 1983. Count I claimed that the trademark licensing decisions violated their free speech rights, while Counts II-IV challenged the constitutionality and vagueness of the trademark guidelines. The district court ruled that the defendants were not entitled to qualified immunity, granted summary judgment for the plaintiffs on Count I, and dismissed Counts II-IV. It also issued a permanent injunction against the defendants to prevent viewpoint discrimination in enforcing trademark policies and prohibiting designs featuring a cannabis leaf. The defendants contended that the district court erroneously concluded that the plaintiffs had standing, a jurisdictional prerequisite requiring proof of injury, a causal connection to the challenged conduct, and the likelihood of redress. The plaintiffs bear the burden of demonstrating these elements. Defendants contend that plaintiffs lack standing because they assert the rights of NORML ISU rather than their own. To establish standing, plaintiffs must demonstrate personal injury from the defendants' alleged illegal actions. An injury is defined as a deprivation of constitutional rights under 42 U.S.C. § 1983. The court finds that plaintiffs have indeed suffered an injury in their individual capacities, granting them standing to proceed with the lawsuit. Their efforts to use ISU's trademarks for NORML ISU's merchandise are classified as constitutionally protected speech. Allegations that ISU infringed upon their First Amendment rights by rejecting their designs, thereby hindering their message, suffice to establish an injury in fact. Previous Supreme Court cases, such as Widmar v. Vincent and Rosenberger, support that individual students can represent their organizations without the court lacking jurisdiction. The court next addresses defendants' claim of qualified immunity concerning the denial of summary judgment on the First Amendment claim. Summary judgment is appropriate only when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. In assessing qualified immunity, the court examines whether the plaintiffs have shown a violation of a constitutional right and whether that right was clearly established at the time of the alleged misconduct. The plaintiffs allege viewpoint discrimination in violation of their First Amendment rights, noting that a state university cannot discriminate based on the viewpoint of speech in a limited public forum. ISU's trademarks constitute a limited public forum when made available under specific conditions. The defendants' rejection of NORML ISU's designs constitutes viewpoint discrimination, as it is based on the ideology of the group. Such discrimination is only justifiable if the government shows that its regulation is narrowly tailored to serve a compelling state interest. Defendants demonstrated discriminatory intent towards NORML ISU as evidenced by the atypical scrutiny applied to the group following the publication of a Des Moines Register article. Notably, defendants halted NORML ISU's reorder of T-Shirt Design #1 despite prior approval from the Trademark Office, while simultaneously placing a similar request from the Association of Malaysian Students on hold only under different circumstances. Zimmerman indicated that if the latter group communicated their timeline, their request could be expedited, a courtesy not extended to NORML ISU. Zimmerman also testified that she could not recall any instance of another student group's reorder being similarly delayed, and Madden confirmed he had not ordered such holds for other groups. Additionally, NORML ISU was uniquely required to obtain prior approval from two senior vice presidents for future designs using ISU trademarks before submitting them to the Trademark Office, a first for any student group at ISU. Defendants attempted to equate this with the oversight faced by the hockey club, which had a history of mismanagement, but NORML ISU had no such issues and was not subjected to the same level of preapproval scrutiny. Moreover, NORML ISU was the only student group whose trademark application was denied due to concerns over perceived political endorsement. Defendants cited six rejected design requests, but these were largely unrelated cases involving corporate logos or misrepresentations of club status, with one design later approved after minor alterations. Defendants' actions and statements indicated that the scrutiny on NORML ISU was influenced by viewpoint discrimination. Following the publication, ISU asserted that all student groups could use university trademarks if they complied with guidelines, yet the political backlash from the governor’s office and others led to immediate revisions of the Trademark Guidelines and heightened scrutiny of NORML ISU’s applications. Testimony from Leath confirmed that political complaints directly impacted their decision-making process, contradicting defendants’ claims that the pushback did not influence their actions. Defendants' political motivations are evident through various statements regarding the rejection of designs by NORML ISU. Leath indicated that T-Shirt Design #1 had potential political implications that warranted higher-level review due to the controversial nature of the issues involved, particularly in a conservative environment like Iowa. Hill argued that ISU's logos could be used by politically affiliated student groups but not by NORML ISU, implying that NORML ISU members were not fulfilling civic duties by advocating for law reform. Zimmerman rejected NORML ISU's design featuring "Legalize Marijuana," stating it lacked a specific action plan and had a sensationalist approach that did not aid in their advocacy. Notably, there was no evidence that Zimmerman provided similar feedback to other student groups. Madden noted that revisions to the Trademark Guidelines resulted from external pressures, particularly concerns that ISU appeared to endorse NORML ISU's advocacy. Historically, ISU had not rejected design applications based on perceived endorsement issues. Defendants maintained that student organizations' use of ISU marks did not imply university endorsement of their beliefs. The situation parallels the case of Gay, Lesbian Students Ass'n v. Gohn, where the university engaged in viewpoint discrimination by denying funding to a group advocating for LGBTQ rights. Similar to that case, ISU applied an atypical trademark approval process for NORML ISU following a related news article and implied that additional scrutiny was due to the group's views. The defendants faced political pressure from Iowa legislators, leading the district court to correctly conclude that defendants violated NORML ISU's First Amendment rights through viewpoint discrimination, without providing a compelling governmental interest for their actions. Defendants contend that even if viewpoint discrimination occurred, it did not infringe on plaintiffs' First Amendment rights because the trademark licensing system should be classified as government speech. The Free Speech Clause restricts government regulation of private speech but does not limit government speech, as established in Roach v. Stouffer and Pleasant Grove City v. Summum. When the government communicates, it can control its message without violating the Free Speech Clause, as noted in Walker v. Tex. Div. Sons of Confederate Veterans, Inc. However, the government speech doctrine is inapplicable if a limited public forum for speech has been created, which is the case here, as Iowa State University (ISU) allowed student organizations to use its trademarks under specific conditions. ISU’s trademark licensing does not equate to government speech, as the university did not aim to convey any message through this licensing, allowing diverse organizations with opposing viewpoints access to its trademarks. Even if the licensing program might meet the final factor of government speech, the cumulative factors do not support that characterization because ISU does not utilize the licensing to communicate with the public. Next, the analysis shifts to whether the plaintiffs’ rights were clearly established. For a right to be considered clearly established, its parameters must be sufficiently defined so that a reasonable official would recognize when their conduct violates that right, as indicated by Foster and Ashcroft v. al-Kidd. The Supreme Court has stated that clearly established law should not be defined at a high level of generality but must be particularized to the specifics of the case. The critical question here is whether plaintiffs’ right to be free from viewpoint discrimination in a university's limited public forum was clearly established at the time of the events relating to ISU's trademark licensing. A university establishes a limited public forum by allowing certain groups or specific discussions on its property, as affirmed by the Supreme Court in cases like Martinez, Rosenberger, and Widmar. Iowa State University's (ISU) trademark licensing program functions similarly to the student activity fund in Rosenberger, as it permits student organizations to use trademarks while adhering to specific rules. This program is recognized as a limited public forum. Defendants claimed they did not violate established law because the government speech doctrine was unclear at the time, but it is established that such doctrine does not exempt state actors from First Amendment scrutiny in a limited public forum. The Court clarified that while the state can make content-based decisions as the speaker, private speech in these forums must not face viewpoint discrimination. ISU's program accommodates many student organizations, thus not constituting government speech. It is also well-established that universities cannot discriminate based on viewpoint in a limited public forum. The Supreme Court has consistently upheld that denying access based on viewpoints violates First Amendment rights. Therefore, plaintiffs' rights against viewpoint discrimination were clearly established, and the district court correctly denied qualified immunity to defendants and granted summary judgment on the plaintiffs' First Amendment claims. Defendants contend that the district court's injunctive relief is overly broad as it allows NORML ISU to use its trademarks in a manner that contravenes trademark guidelines regarding viewpoint neutrality. The standard for reviewing a permanent injunction is whether the district court abused its discretion, ensuring that the injunction is not broader than necessary to address the underlying issue. NORML ISU's use of the cannabis leaf aligns with ISU's trademark policies since it promotes marijuana law reform rather than illegal usage, indicating that the injunction is not an abuse of discretion. Consequently, the court affirms the district court's judgment. Circuit Judge Kelly concurs with the opinion but addresses the dissent on the topic of qualified immunity. It is clarified that qualified immunity does not necessitate a directly applicable case to establish a right nor does it require the specific action in question to have been deemed unlawful prior. The critical factor is whether the law at the time of the incident provided fair warning to the defendants regarding the unconstitutionality of their actions. This standard applies equally to university officials in First Amendment cases, where prior rulings indicate that universities cannot discriminate against recognized student groups based on viewpoint. At the time of the disputed actions in fall 2012, multiple Supreme Court decisions had established that withholding benefits from student groups due to their perspective is unconstitutional, thus affirming that the defendants were aware their conduct violated plaintiffs' First Amendment rights. ISU granted recognized status to NORML ISU, determining that its purpose aligned with the university’s educational mission, but explicitly stated it does not support or endorse any registered organization, including NORML ISU. Recognized organizations enjoy special privileges, such as using the university’s name and marks, which establishes a limited public forum; ISU cannot discriminate based on viewpoint when granting these privileges. Once ISU chose to provide funding and resources, it became obligated by the First Amendment to do so without regard to the content of the ideas expressed. University President Williams cannot evade responsibility for infringing First Amendment rights, regardless of his intentions for the university's benefit. Precedents indicate that the trademark program allowed student groups to use ISU’s symbols alongside their messages, similar to past cases (Rosenberger and Martinez) where the Court applied forum analysis consistently. Even if the trademark licensing program were considered a nonpublic forum, viewpoint discrimination is prohibited. The dissent argues that it was not clearly established that ISU’s policy constitutes government speech, noting that defendants were likely aware of only two relevant cases at the time of the events, as others emerged later. The dissent suggests that the legal question remained unresolved when the actions occurred. The case addresses the issue of whether the actions of a university in funding student organizations constitute government speech, referencing the Supreme Court's precedent established in Rosenberger. This precedent asserts that a university's funding decisions regarding student publications should not be based on viewpoint discrimination, even in nonpublic forums. The dissent argues that the university's licensing requirements prevent approval of certain products deemed dangerous or offensive; however, these requirements only apply to external uses and do not pertain to the student organization in question. The court highlights that funding aimed at fostering a diversity of views does not equate to government endorsement of specific messages. The university's Student Organization Recognition Policy explicitly states that its mission includes supporting diversity and does not signify endorsement of any organization’s purposes. Testimonies confirm that the use of university marks by student organizations does not imply university endorsement. The Trademark Guidelines further distinguish the university's relationship with student organizations, requiring clear identifiers to maintain separation. By allowing a wide range of student groups to express diverse viewpoints, the university continues its tradition of promoting a rich exchange of ideas among students, which is crucial for their development and engagement in society. The document asserts that concerns regarding the attribution of ISU’s messages to the university are unfounded. Citing the Rosenberger case, it states that ISU’s name on student organization t-shirts would not be interpreted as the university’s own expressive conduct, thus negating reliance on the government speech doctrine. The dissent’s argument for qualified immunity, linked to reactions to NORML ISU and a related article, is criticized for its narrow focus. The crux of the disagreement lies in whether ISU’s actions in allowing privately donated monuments signify its own expressive conduct or merely provide a platform for private speech. The document emphasizes that there is minimal public confusion about ISU’s endorsement of student speech, as evidenced by a limited number of complaints regarding the t-shirts. It highlights that the historical context shows ISU has maintained a public forum for student expression without endorsing it. Finally, it refutes the dissent’s view on permissible content regulation, maintaining that even if raised, such a defense would not grant qualified immunity to ISU. In a limited public forum, the state can restrict usage to specific legitimate purposes, reserving it for designated groups or discussions. While the government speech doctrine is relatively new, it has origins dating back to 1991. However, constitutional limitations exist on how the state can define these forums. Exclusions based on unreasonable distinctions or viewpoint discrimination are prohibited. In the case discussed, the dissent's claim that NORML ISU was excluded to protect Iowa State University's (ISU) public image is deemed unreasonable. ISU had initially approved the design for NORML ISU's t-shirts without concern for perceived endorsement. Action was only taken after media coverage, which suggests improper post facto censorship of speech that was previously allowed. The principle that a forum opened to speech cannot later be closed to specific expressions is reinforced. ISU's selective approval of other groups’ merchandise that conveyed similar messages indicates a lack of consistent policy, revealing viewpoint discrimination against NORML ISU. The university's actions are contrasted with the acceptance of other groups’ expressions, highlighting a disparity in enforcement and an apparent bias against NORML ISU's viewpoints. Defendants' decision to cut funding for a student newspaper was found to be improperly influenced by the content of a specific issue, contrary to viewpoint neutrality principles. The court noted that if the Regents had been genuinely motivated by a neutral justification, they would have addressed similar issues at other campuses. There was a historical precedent established since 1972 that prohibits colleges from restricting speech based on distasteful views. The court emphasized that the university should have maintained a neutral stance to avoid any misrepresentation of the student group’s views as the university’s own. The dissent argued that the university could reasonably deny a t-shirt design from NORML ISU due to its potential association with illegal activities, but the university did not cite this reason in rejecting the design, nor was it supported by relevant case law. The court stated that no appellate court had applied Morse v. Frederick in a university context, and the controlling concurrence in that case indicated that speech connected to political or social issues, such as drug legalization, should not be restricted. The defendants acknowledged that the rejected t-shirt design expressed support for marijuana legalization, which further negated the applicability of Morse. Even if the organization promoted illegal drug use, speech regarding illegal activities remains protected under the First Amendment. Additionally, the dissent's reference to Hazelwood School District v. Kuhlmeier was deemed inappropriate, as that case pertained to high school journalism and did not apply to the current university setting. Thus, the court upheld the denial of qualified immunity for the defendants, recognizing the significant First Amendment implications in the case. Iowa State University administrators' response to a sensitive public issue warranted injunctive relief; however, the permanent injunction's wording is not endorsed. The dissenting opinion argues against the court's decision to deny the individual Defendants qualified immunity regarding the Plaintiffs' claims for compensatory damages and attorneys’ fees. Qualified immunity is designed to protect government officials making reasonable, albeit mistaken, judgments and shields them from liability unless they are clearly incompetent or knowingly violate the law. The dissent emphasizes that the ISU administrators did not fall into these categories, citing the complexities surrounding students' speech laws. The court's permanent injunction prohibits Defendants from enforcing trademark licensing policies in a viewpoint-discriminatory manner and from barring Plaintiffs from creating licensed apparel featuring a cannabis leaf design. The dissent criticizes the term "viewpoint discriminatory" as vague and the injunction as overly broad. For qualified immunity to apply, conduct must not violate clearly established rights that a reasonable person would recognize. The court concluded that ISU's trademark licensing program constituted a limited public forum and that Defendants engaged in viewpoint discrimination. The dissent underscores the Supreme Court's guidance that “clearly established law” must be specific to case facts and that educators are typically afforded immunity in First Amendment disputes, except under analogous precedents clearly establishing unconstitutional conduct. The dissent notes the absence of cases where school officials administering trademark licensing faced First Amendment violations, highlighting the uncertain nature of the First Amendment issues at hand, which justify granting qualified immunity. The legal document addresses two primary issues: (1) whether a trademark licensing program permitting student groups to use the university's logo constitutes government speech or a limited public forum, and (2) if it is deemed a limited public forum, whether the university's restrictions on designs related to unsafe or illegal activities, such as drug use, amount to unlawful viewpoint discrimination or acceptable content regulation. The university's trademark licensing guidelines emphasize that the program aims to promote the institution's image and public recognition, necessitating compliance with specific design standards. These standards require that any designs include the student organization's official name, adhere to quality imaging and the university's color palette, and refrain from vulgar language or inappropriate content. Additionally, the guidelines prohibit the approval of products deemed dangerous or offensive, including those related to health risks, firearms, drugs, alcohol, gaming, or tobacco. Prior to the litigation, it was ambiguous whether the trademark licensing program was categorized as government speech, which would exempt it from First Amendment scrutiny. The court references the Supreme Court's decision in Pleasant Grove City v. Summum, which illustrated the complexity in distinguishing between government speech and private speech forums. The court recognizes that when government entities are speaking on their own behalf, forum analysis is irrelevant, as established in Walker v. Texas Div. Sons of Confederate Veterans. The document also highlights precedent where similar cases, such as the exclusion of a Ku Klux Klan acknowledgment by a university radio station and the denial of a Confederate design on Texas license plates, were ruled as government speech, thus reinforcing the evolving interpretation of government speech doctrine. The Eleventh Circuit determined that private advertising banners in school colors displayed on school property constitute government speech, as observers perceive government endorsement of the message (Mech v. Sch. Bd. of Palm Beach Cty. Fla., 806 F.3d 1070, 1076-77). Defendants in the current case were concerned that NORML's use of Iowa State University's (ISU) trademark implied the university's support, particularly after NORML's President publicly claimed that licensing approvals indicated university backing. This concern was compounded by political pressures and adverse public reactions, including worries from ISU parents about the implications of associating the university's mascot, Cy the Cardinal, with drug use. The court acknowledges that the issue of government speech is complex and merits qualified immunity, as established precedents do not provide a clear distinction between government and private speech (Ashcroft v. al-Kidd, 563 U.S. 731). The government-speech doctrine is relatively new and lacks a precise test, as noted in Mech. Furthermore, while the court references Rosenberger v. University of Virginia to support the classification of ISU’s trademark licensing program as a limited public forum, it highlights that this program's structure—allowing student organizations to pair their messages with ISU's prominent symbols—may inadvertently suggest university endorsement, complicating the application of First Amendment protections. Limited public forums can impose reasonable, viewpoint-neutral restrictions, but the nature of the trademark program raises questions about its administration and the implications for free speech rights. Determining whether a public university is confining a limited public forum to its intended purposes must involve a distinction between content discrimination, which may be permissible, and viewpoint discrimination, which is generally not allowed. Courts must assess if regulations on speech are reasonable and not simply aimed at suppressing opposing views. In the context of a limited public forum, there must be a clear intent to create such a forum. The court acknowledges that ISU created a limited public forum by allowing student organizations to use its trademarks to promote public speech, but ISU's primary goal was to protect its public image, which was explicitly stated in the program guidelines. Access to this forum can be reasonably denied if the speech appears to endorse messages or activities that ISU does not support, such as illegal drug use. The court incorrectly assumes that the Defendants engaged in viewpoint discrimination by scrutinizing NORML ISU’s messages more than those of other groups. The distinction lies in whether the First Amendment requires schools to tolerate specific student speech versus promoting it. The case raises significant issues not adequately addressed by the district court, including the potential perception of promoting illegal drug use in the designs submitted by NORML ISU, which could be seen as exceeding permissible content regulation. The Supreme Court's ruling in Morse v. Frederick supports the notion that schools can restrict speech that advocates illegal activities, reinforcing the argument against NORML ISU’s designs. Defendants' actions towards NORML's use of ISU’s trademark may be scrutinized under the First Amendment, questioning whether administrators of a limited public forum at a public university must allow participation from advocates of law reform, given that other avenues for expression exist. The debate also concerns which specific student uses of this forum require approval to avoid unreasonable rejection, suggesting that not all expressions, such as images of cannabis leaves, necessitate acceptance. These complex issues indicate that the individual Defendants are entitled to qualified immunity. Between December 2007 and March 2015, the Trademark Licensing Office processed 4,167 submissions from student organizations, resulting in 710 rejections, 1,139 approvals with revisions, and 2,195 approvals. The Trademark Office advised NORML to align its design with its mission of reforming marijuana laws. The dissenting opinion concludes with the statement of disagreement regarding the handling of these issues.