Stephen Leath, Warren Madden, Thomas Hill and Leesha Zimmerman are four Americans who had a very bad time in federal court last week because these public university administrators buckled to Iowa Republican Party political pressure and banned a pro-marijuana T-shirt.
Not only did the Iowa State University President, the Senior Vice President, the former Vice President for Student Affairs and the Program Director for the Trademark Licensing Office lose their attempt to discriminate against an ISU student cannabis advocacy group, but also Senior District Judge James Gritzner ruled their actions were so unreasonable that they are also personally liable for civil rights damages.
Here’s what these folks did. Back in 2012, ISU approved the T-shirt design submitted by its student chapter of the National Organization for the Reform of Marijuana Laws. As you can see below, the shirt incorporates both a cannabis leaf and the school’s trademarked mascot Cy.
Iowa State, a publicly funded university, has guidelines in place for student groups that want to use its trademarks. Under these guidelines, the T-shirt was fine.
However, once the T-shirt got a little attention in the Des Moines Register, some powerful conservative Republican politicians didn’t like it one bit. Specifically, Brad Trow, on behalf of the House Republican Caucus staff, and Steve Lukan, the Republican Governor’s drug control executive, contacted ISU’s administrators. Leath, Madden, Hill and Zimmerman decided their own politically influenced personal interests superseded the students’ constitutional rights, so they retroactively banned the shirt.
Two students who led NORML ISU, Erin Furleigh and Paul Gerlich, sued both the university and the individual state officials who violated their civil rights in federal court. Last week, they won.
“It is extremely validating to have a federal judge agree that our First Amendment rights were violated. It’s also gratifying that this decision will help make sure that other students … won’t have to go through what we did,” Gerlich said in a statement following the decision.
Viewpoint-discriminatory behavior by the government is intolerable under the First Amendment. In the early ’70s, the United States Supreme Court held that such discrimination was constitutionally unlawful after Central Connecticut State College refused to recognize its Students for a Democratic Society chapter because it disagreed with the group’s political activities. In the mid ’90s, the Court found viewpoint discrimination by the University of Virginia in its refusal to fund Wide Awake, a Christian campus organization.
While Iowa State argued that the T-shirt promoted unlawful activity in the form of marijuana use, the students countered that their organization seeks to change laws, which makes the shirt protected speech, for which it was illegally targeted. Gritzner said the students were right.
“There is a crucial difference between promoting an illegal activity and advocating for an activity or substance that is now illegal to be made legal. Plaintiffs did the latter, advocating for a change in the law, using the iconography of the national NORML organization,” he wrote.
What’s more, since prohibited viewpoint discrimination is such a “familiar issue” and so well-established “in the university context,” the judge determined, it would be unreasonable to offer a qualified immunity defense to shield Leath, Madden, Hill and Zimmerman from personal liability.
“Defendants took action specifically directed at NORML ISU based on their views and the political reaction to those views so that Defendants could maintain favor with Iowa political figures,” wrote the court. “Once Defendants began receiving pressure from Iowa political figures, though, they immediately took measures to ensure there would be no political controversy over NORML ISU’s use of ISU marks. These actions were naturally predicated on the political content of the group’s views.”
Qualified immunity in a federal civil rights case is essentially a defensive buffer for government employees to allow them to do their jobs with less fear of being sued. Rather than needing to prove malice, a plaintiff need only prove that a reasonable person in the government employee’s position would have known the behavior at issue violated clearly established law. (For example, it’s why Stephen Avery sued individual officers over his wrongful rape conviction in Wisconsin.)
Plaintiff attorney Catherine Sevcenko told Cannabis Now the ball is in the university’s court.
“Right now we’re waiting for ISU to review its legal options and inform us how it wants to proceed,” said Sevcenko. The students’ original complaint claimed money damages and may still be a possibility, she said.
The lesson for public university administrators is clear: Discriminating against students organizing for better cannabis laws is as un-American as it gets. Before you do, be prepared to face that lawsuit.
What do you think? Is wearing cannabis-themed clothing a method practicing of free speech?