FAN 142 (First Amendment News) 8th Cir. Upholds 1st Amendment challenge to trademark licensing rule


Paul Gerlich & Erin Furleigh (credit: FIRE)

Seattle. “Then-students Paul Gerlich and Erin Furleigh were officers with Iowa State University’s chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) when they filed their lawsuit in July 2014, through the Foundation for Individual Rights in Education’s (FIRE’sStand Up For Speech Litigation Project. The group had multiple T-shirt designs rejected by the university and was subject to unusually heavy, politically motivated scrutiny when applying to use ISU logos under the school’s trademark policy.”

Yesterday, “the Eighth Circuit held that ISU administrators had engaged in unconstitutional viewpoint discrimination, violating Furleigh and Gerlich’s First Amendment rights.” (FIRE press release)

The case is Gerlich v. Leath, which was handed down by a three-judge panel of Eight Circuit. The opinion for the court was written by Judge Diana E. Murphy. Here is how it opens:

Judge Diana Murphy

“Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana Laws had several of its trademark licensing requests denied because its designs included a cannabis leaf. Two members of the student group subsequently filed this 42 U.S.C. § 1983 action, alleging various violations of their First and Fourteenth Amendment rights. The district court granted plaintiffs’ summary judgment motion in part and entered a permanent injunction against defendants. Defendants appeal, and we affirm.”

In deciding the case, the court ruled that the ISU NORML chapter had Article III standing to sue under both Rosenberger v. Rector & Visitors of Univ. of Va. (1995) and Widmar v. Vincent (1981).

The court held that the government cannot grant or withhold government benefits based on officials’ political preferences — including use of trademarks. It drew a clear line against expansion of the “government speech” doctrine to matters involving student speech on university campuses. — Robert Corn-Revere (lead counsel for Plaintiffs)

Limited Public Forum Issue: The court then sustained the Plaintiffs’ motion for summary judgment on their as applied First Amendment challenge. In that regard, Judge Murphy noted: ‘If a state university creates a limited public forum for speech, it may not “discriminate against speech on the basis of its viewpoint.’ Rosenberger. A university ‘establish[es] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ Christian Legal Soc. Chapter of the Univ. of Cal. v. Martinez (2010). A university’s student activity fund is an example of a limited public forum. See Rosenberger. ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions.”

Lisa Zycherman (one of Plaintiffs’ lawyers)

Viewpoint Discrimination: “The defendants’ rejection of NORML ISU’s designs,” she added, “discriminated against that group on the basis of the group’s viewpoint. The state engages in viewpoint discrimination when the rationale for its regulation of speech is ‘the specific motivating ideology or the opinion or perspective of the speaker.’ Rosenberger.”

“. . . . The instant facts are somewhat similar to those in Gay & Lesbian Students Ass’n v. Gohn (8th Cir. 1988). In that case, the University of Arkansas made funding available to student groups but denied funding one advocating for gay and lesbian rights. We concluded that the university had engaged in viewpoint discrimination.  In reaching this conclusion our court relied on the fact that the university followed an unusual funding procedure that was specific to the gay and lesbian group, some of the decision makers ‘freely admitted that they voted against the group because of its views,” and ‘[u]iversity officials were feeling pressure from state legislators not to fund’ the group. Id.

The court rejected ISU’s denials that its actions were politically motivated. The court pointed to e-mail communications among school officials that showed they reacted within hours of receiving inquiries from legislative staff and political appointees. ISU’s President, Steven Leath, testified at his deposition that he was concerned about “political public relations implications” of the NORML ISU t-shirt designs, and “my experience would say in a state as conservative as Iowa on many issues, that [it] was going to be a problem.”  Leath also testified that “anytime someone from the governor’s staff calls complaining, yeah, I’m going to pay attention, absolutely.”

Ronald London (one of Plaintiffs’ lawyers)

Government Speech Claim: Finally, the Court rejected ISU’s claims that the administration of the trademark licensing regime should be considered government speech. The government speech doctrine does not apply if a government entity has created a limited public forum for speech, wrote Judge Murphy relying on Pleasant Grove City. As noted above, she added, “ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. The administration of its trademark licensing regime therefore did not constitute government speech.”

“Even if the trademark licensing regime here did not amount to a limited public forum, however, the government speech doctrine still does not apply on this record. . . . [Even when analyzed under the three-factors announced in Walker v. Tex. Div., Sons of Confederate Veterans, Inc. (2015), those] factors taken together would not support the conclusion that the speech at issue in this case is government speech because ISU does not use its trademark licensing regime to speak to the public.”

Lawyers for the Plaintiffs: Robert Corn-Revere, Ronald London & Lisa Zycherman.  Local counsel was Mike Giudicessi.

Three of Professor Eugene Volokh’s students — Ian Daily, Eric Sefton and Sydney Sherman — and Volokh filed an amicus brief on behalf of the Student Press Law Center arguing in favor of this result.

Headline: “Breitbart’s Milo Yiannopoulos inspires Tennessee ‘free speech’ bill”

This from a USA Today story by Adam Tamburin: “Inspired by a Breitbart News editor whose speeches have spurred protests at colleges across the country, state lawmakers on Thursday touted a bill that they said would protect free speech on Tennessee campuses.”

“. . . Daniel, R-Knoxville, called his legislation “the Milo bill,” and said it was ‘designed to implement oversight of administrators’ handling of free speech issues.'”

“. . . The bill said public universities ‘have abdicated their responsibility to uphold free speech principles, and these failures make it appropriate for all state institutions of higher education to restate and confirm their commitment in this regard.'”

Need an amicus brief in your First Amendment case?

This from Professor Eugene Volokh over at the Volokh Conspiracy:

The Scott & Cyan Banister First Amendment Clinic that I run is in full swing for the spring — my students and I are working on cases before the California, Illinois, Iowa, and Mississippi supreme courts this month, and we have several cases lined up for the remaining eight slots (four slots for briefs due March 31 or thereabouts and four more due April 30 or later). But we still have a few slots open, especially for briefs due April 30 or later but probably also for at least one brief due March 31 or so. (Given the briefing schedules, one can’t plan these cases too far in advance.)

So please let me know at volokh at

  1. If you are litigating a case involving free speech or religious freedom — whether a constitutional case or one dealing with related statutes (e.g., ones involving anti-SLAPP statutes, journalist’s privileges, copyright fair use, and the like),
  2. in any state or federal court,
  3. at any level (supreme, intermediate appellate, or even trial, if the trial court accepts amicus briefs),
  4. and you can use an amicus brief that would be due March 31 or later.

Accepting Applications — Abrams Institute’s Conference Freedom of Expression — Scholars Conference

Call for Abstracts & Participants: Freedom of Expression Scholars Conference

The Floyd Abrams Institute for Freedom of Expression invites applications to participate in the fifth annual Freedom of Expression Scholars Conference (FESC). ‘

The conference will be held at Yale Law School in New Haven, Connecticut from April 28 – 30, 2017.

→ We ask all those interested in presenting a paper or commenting on a paper to respond by February 24, 2017.

At FESC, scholars and practitioners discuss works-in-progress on the freedoms of speech, expression, press, association, petition, and assembly as well as on related issues of knowledge and information policy. FESC has become a fixture on the calendar of leading First Amendment thinkers and scholars nationwide. The paper titles and attendees from prior conferences are available here: 201620152014, and 2013.

Each accepted paper is assigned to a discussant, who provides feedback and leads a conversation at the conference. Workshop sessions are typically lively discussions among authors, discussants, and participants. Sessions run from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening. Conference participants are expected to read the papers in advance and to attend the entire conference.

We accept papers on a wide array of freedom of expression and information policy topics. This year, we are also particularly interested in fielding papers addressing the implications of recent events for freedom of speech and press, including:

  • the roles and responsibilities of social media platforms in fostering public debate;
  • press access, freedom of information, the reporter’s privilege, and related free press issues;
  • whistleblower rights, obligations, and protections; and
  • the intersections between freedom of speech, privacy, and encryption policy.

Although participation at the conference is by invitation only, we welcome paper proposals from scholars, practitioners, and free speech advocates all over the world. As before, we are expecting that participants will ask their home institutions to cover travel expenses.

  • Titles and abstracts of papers should be submitted electronically to Heather Branch no later than February 24, 2017.
  • Those interested in attending the conference or acting as a discussant should also contact Heather Branch no later than February 24, 2017.
  • Workshop versions of accepted papers will be due on March 31, 2017.

Floyd Abrams’ Next Book: Advanced Copy Out 

Come this April 25, 2017 Yale University Press will release Floyd Abrams’ third and latest book, The Soul of the First Amendment. I just received a bound copy of the advanced uncorrected page proofs.

In a blurb for the book, Jeffrey Rosen writes: Floyd Abrams is one of America’s greatest constitutional lawyers and defenders of the First Amendment.  In this inspiring book, he reminds us why it’s important to protect the speech we hate. 

Below is the publisher’s abstract of the book:

A lively and controversial overview by the nation’s most celebrated First Amendment lawyer of the unique protections for freedom of speech in America

The right of Americans to voice their beliefs without government approval or oversight is protected under what may well be the most honored and least understood addendum to the US Constitution—the First Amendment. Floyd Abrams, a noted lawyer and award-winning legal scholar specializing in First Amendment issues, examines the degree to which American law protects free speech more often, more intensely, and more controversially than is the case anywhere else in the world, including democratic nations such as Canada and England. In this lively, powerful, and provocative work, the author addresses legal issues from the adoption of the Bill of Rights through recent cases such as Citizens United. He also examines the repeated conflicts between claims of free speech and those of national security occasioned by the publication of classified material such as was contained in the Pentagon Papers and was made public by WikiLeaks and Edward Snowden.

New & Forthcoming Scholarly Articles 

  1. Claudia E. Haupt, Antidiscrimination in the Legal Profession and the First Amendment: A Partial Defense of Model Rule 8.4(g), University of Pennsylvania Journal of Constitutional Law Online (2017 Forthcoming)
  2. Sonja West, Favoring the Press, SSRN (Feb. 8, 2017)
  3. Matthew Stanford, Diminution Doctrine: Arbitration’s First Amendment Problem, SSRN (Feb. 11, 2017)
  4. Kayla Louis, Pornography and Gender Inequality-Using Copyright Law as a Step Forward, SSRN (Jan. 24, 2017)

New & Notable Blog Posts 

News, Editorials, Op-eds & Blog Posts

  1.  Jeff Clements & John Coates, Corporations like Exxon are using spurious free speech claims to fend off regulation, Vox, Feb. 14, 2017
  2. Bruce Majors, How Federal Spending Fuels The Campus Speech Police, The Federalist, Feb. 14, 2017
  3. Mike Ludwig, Free Speech Restrictions Leave Federal Workers Anxious About Challenging Trump, Truthout, Feb. 14, 2017
  4. John Hart, Marco Rubio, Not Elizabeth Warren, Is A Free Speech Hero, Forbes, Feb. 13, 2017
  5. Peter Moskowitz, The Campus Free Speech Battle You’re Not Seeing, Jezebel, Feb. 13, 2017
  6. Jeff Donn & Geoff Mulvihill, Supreme Court nominee has defended free speech, religion, Washington Post,  Feb. 12, 2017
  7. Elizabeth Nolan Brown, Facebook Has No First Amendment Right to Send Unauthorized Texts, Says Court,, Feb. 10, 2017
  8. Michael Corcoran, The First Amendment May Not Protect Us: Trump’s FCC Intensifies Attack on Press, Truthout, Feb. 10, 2017
  9. Cari Wade Gervin, First Amendment Needs Protecting from Liberals, Say Republican Legislators, Nashville Scene, Feb. 9, 2017
  10. Dvid Ross, The First Amendment: Not just a good idea, Valley Road Runner, Feb. 9, 2017


This Day in First Amendment History 

The Court’s 2016-2017 First Amendment Free Expression Docket

Cert. Granted

  1.  Expressions Hair Design v. Schneiderman (oral argument: Jan. 10, 2017) (transcript here)
  2. Lee v. Tam (oral argument: Jan. 18, 2017) (transcript here)
  3. Packingham v. North Carolina (oral argument: Feb. 27. 2017)

Pending Appeals & Petitions & Related Cases*

  1. Republican Party of Louisiana v. FEC
  2. Independence Institute v. FEC
  3. Augsburg Confession
  4. Bondi v. Dana’s Railroad Supply
  5. Scott v. Georgia (The Georgia Supreme Court upheld, in the face of a First Amendment overbreadth challenge, a statute that forbids otherwise-protected sexually related speech to minors if the speaker intends to arouse or satisfy someone’s sexual desire. The Texas Court of Criminal Appeals and the Ninth Circuit Court of Appeals have held such statutes unconstitutional.)

Cert. Denied

  1. Bennie v. Munn
  2. Flytenow v. Federal Aviation Administration
  3. Armstrong v. Thompson
  4. Wolfson v. Concannon
  5. Dart v.
  6. NCAA v. O’Bannon
  7. Mech v. School Board of Palm Beach County
  8. Williams v. Coalition for Secular Government 
  9. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Case: Review denied 

  • Doe v. LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Denied 

  • Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Freedom of Information Act Petition: Pending  

 The Court’s last Conference was on January 19, 2017; the next conference is on February 17, 2017

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #143: February 22, 2017

Last Scheduled FAN, #141Judge Neil Gorsuch — the Scholarly First Amendment Jurist

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1 Response

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