The US Court of Appeals for the Eighth Circuit affirmed the district court’s decision that a university licensing authority violated the First Amendment when refusing to approve use of the university’s trademarks on t-shirts incorporating a marijuana leaf design. Gerlich et al. v. Leath et al., Case No. 16-1518 (8th Cir., Feb. 13, 2017) (Murphy, J).

Iowa State University (ISU) has about 36,000 students and about 800 officially recognized student organizations. One of these student organizations, the National Organization for the Reform of Marijuana Laws (NORML ISU), produced t-shirts and other items to promote its cause. All student groups are required to get approval from the ISU trademark licensing office in order to use ISU’s trademarks, and NORML ISU received such approval. NORML ISU’s t-shirts incorporated the university’s trademark and a marijuana leaf design.

In 2012, the Des Moines Register published an article about legalization of marijuana in Iowa, featuring a photo of the president of NORML ISU wearing the t-shirt with the university’s trademark and the marijuana leaf design. After the article was published, ISU informed NORML ISU that approval to use ISU’s trademarks had been rescinded because the design suggested that ISU itself supported the legalization of marijuana. Later, ISU revised its trademark guidelines to provide that no designs would be approved that suggested promotion of (1) dangerous, illegal or unhealthy products, actions or behaviors, or (2) illegal or unhealthful drugs and drug paraphernalia. Following the revisions to the guidelines, administrators at ISU rejected two t-shirt designs submitted by NORML ISU because of the incorporation of the marijuana leaf design. NORML ISU filed a complaint against four of the administrators at ISU, alleging violations of its First Amendment rights, among other things.

The district court concluded that ISU’s trademark licensing practice discriminated against NORML ISU based on the organization’s pro-marijuana views, holding that ISU “took action specifically directed” at NORML ISU. The ISU administrators appealed.

On appeal, the Eighth Circuit confirmed the district court’s decision, concluding that “ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions.” ISU’s “rejection of NORML ISU’s designs discriminated against that group on the basis of the group’s viewpoint.” The Court further held that ISU’s “discriminatory motive is evidenced by the unique scrutiny defendants imposed on NORML ISU after the Des Moines Register article was published.” For example, NORML ISU was required to obtain approval of its designs from the administrators before submitting the designs to ISU’s trademark licensing office. Moreover, NORML ISU is the only student organization that had its trademark application denied for fear that ISU would be seen as endorsing a political cause.