Attorney: NORML lawsuit about “more than T-shirts”

Attorney: NORML lawsuit about “more than T-shirts”

Posted November 19, 2014 – 12:54pm

By Melissa Erickson
Associate Editor
merickson@amestrib.com

DES MOINES — While it all started with a T-shirt, an Iowa State University student group’s grievances with university administrators go beyond wanting to use the university’s mascot on their pro-marijuana legalization shirts, an attorney representing the group said Wednesday.

Students Paul Gerlich and Erin Furleigh, the current president and vice president of ISU’s chapter of the National Organization for the Reform of Marijuana Laws, or NORML, filed a lawsuit in U.S. District Court for the Southern District of Iowa against ISU and four of its administrators on July 1. In it, the group claimed the university used “viewpoint-based discrimination” by not allowing the group to use the university’s mascot Cy on a T-shirt that also featured a cannabis leaf, and was trying to restrict the group’s message.

ISU, which is represented by the Iowa Attorney General’s Office, has asked for the lawsuit to be dismissed, saying the trademarks are the property of ISU alone and that ISU NORML has no First Amendment claim to use them.

At a hearing Wednesday at the U.S. Courthouse in Des Moines, Assistant Attorney General Tyler Smith said the university always retains the rights to its trademarks, and that there had been public pushback to the first T-shirt because it appeared ISU was endorsing marijuana reform.

Smith said university trademark use approval is “not a one-way ratchet,” and that sometimes people don’t realize something could appear to be supported by the university until it is in the public.

“The courts have recognized that there is a line somewhere between trademark use and free speech,” Smith said.

Smith also said ISU NORML has been recognized as a student group and receives funding from the university.

In his response, attorney Robert Corn-Revere, who is representing ISU NORML, said the T-shirt issue led to a number of other events where the group’s speech was limited.

“Just because you don’t ban an organization doesn’t mean you don’t violate their rights in other ways,” Corn-Revere said.

He said the university has also limited ISU NORML by revoking the prior T-shirt approval, not approving two additional shirt designs and removing the group’s faculty advisor.

Vice President of Student Affairs Tom Hill, who is named as a defendant in the lawsuit, was appointed as the group’s interim faculty advisor, which Corn-Revere said allowed Hill to “pass on criticism from the university president” to the group.

Corn-Revere said ISU’s trademarks are used on beer mugs, shot glasses and football helmets, but those uses aren’t taken to mean the university promotes alcohol or “dangerous behavior.”

He compared the case to lawsuits the Fifth and Eighth Circuit U.S. Courts of Appeals have decided that dealt with private groups designing vanity license plates.

While license plates are distributed by the government, “no one would expect that the people who get these plates are the government speaking,” he said.

Chief Justice James Gritzner asked Smith what the difference is between using the university’s mascot and using just “ISU.”

Smith said using the university’s mascot goes farther than just using the university’s name, and that public pushback to the first T-shirt was part of the problem.

“ISU, when authorizing the use of its marks, retains the right to not allow use when it appears it endorses use of illegal drugs,” Smith said.

As for Hill being appointed the group’s interim advisor, “they say that had a chilling effect, but they don’t say how, they don’t cite any specific examples,” Smith said.

Smith said there are no allegations that ISU NORML wasn’t able to conduct their group meetings, weren’t able to propose T-shirt designs or do other group activities.

In addition to Hill, the lawsuit names as defendants ISU President Steven Leath, Vice President for Business and Finance Warren Madden and Leesha Zimmerman, program director of ISU’s trademark licensing office.

Speaking with reporters after the hearing, Corn-Revere said the case carries broader implications about the power of a government body to control political discourse.

“It’s about whether or not university administrators can control a political message on current political topics by a student group,” he said.

Gritzner did not issue a ruling on the motion to dismiss at Wednesday’s hearing.
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