University Trademarks and 'Mixed Speech' on College Campuses: A Case Study of Gerlich v. Leath and Student Free Speech Rights

Abstract

Higher education has long been the fundamental building block upon which American democracy is based. The guarantees of free speech have served as the catalyst for higher education, itself a revered liberty in the American polity. As the Supreme Court famously declared in 1969: “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Indeed, freedom of expression is imperative to a university’s mission in preparing young aspiring students to become informed and engaged citizens. This paper examines the decision by the Eighth Circuit Court of Appeals in Gerlich v. Leath and elaborates on the complexities that arise when analyzing student speech rights that conflict with university interests. Specifically, this paper reviews the Eighth Circuit's over-simplification of the rights and interests at stake in the original opinion and more thoroughly scrutinize the intricacies of student speech rights on university campuses. The Gerlich decision ultimately misses the analytical mark because it fails to fully evaluate the Free Speech rights at stake will. Insufficient attention is paid to the nuanced tensions that exist when examining First Amendment rights in the setting of a higher education institution—namely, that such circumstances present unique instances of “mixed speech” where both the university and its students are expressing a message particular to their own interests. Though student speech rights do not end at the schoolhouse gates, exactly how far they extend into the daily operations of a public university it remains to be seen. The Gerlich decision would suggest that they are fairly invasive, and growing. But there is good reason to question the strength of the Gerlich opinion. The relevant question is not whether student speech rights should be curtailed on university campuses; the relevant question, rather, is to what extent student speech rights should prevail when they content with—even conflict with—the expressive interests of their university.