Eighth Circuit will take another look at ISU free speech ruling

By: Rox Laird on March 31st, 2017

A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit ruled in February that Iowa State University violated the free speech rights of the campus chapter of the National Association for the Reform of Marijuana Laws (NORML) when it blocked the group’s use of ISU trademarks on NORML T-shirts with an image of a cannabis leaf.

That was thought to be the end of the four-year dispute, but not so. Last week, the three-judge panel decided that it would grant the university’s request to rehear the case.  We don’t know for sure what issue the three judges are reconsidering, but here are the two issues the university raised:

First, the university argued the Court made a mistake in rejecting the university’s argument that the four named university officials – including President Steven Leath – have a right to “qualified immunity,” which protects government officials from civil damages provided they do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” ISU argued there was no clearly established First Amendment right to use university trademarks, nor is the university “clearly prohibited from restricting the licensure of its marks to student groups for purposes of avoiding confusion or endorsement.”

Second, the university told the Court that it misconstrued the purpose of the “limited public forum” that ISU created “when it made its trademarks available for student organizations.” The university argues the intent of the trademark program is to promote the university – not student groups – and regulating how student groups use the trademarks is consistent with that intent, not viewpoint discrimination.

The Eighth Circuit in its Feb. 13 panel ruling upheld a January 2016 ruling by U.S. District Judge James Gritzner in Des Moines that the university violated ISU NORML’s First Amendment rights in the way it applied its trademark policy to the student group.

“ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions,” Eighth Circuit Judge Diana Murphy of Minneapolis wrote for the panel that also included Judges James Loken of Minneapolis and Jane Kelly of Cedar Rapids. “The defendants’ rejection of NORML ISU’s designs discriminated against that group on the basis of the group’s viewpoint.”

Even if the Eighth Circuit panel changes course and rules that the four ISU officials are relieved of potential financial liability based under the qualified-immunity doctrine, the university still faces the prospect of a substantial legal bill: The lawyers representing the ISU NORML leaders filed a petition in federal court seeking more than $194,000 in legal fees and expenses – to which the university has also filed an objection.

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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