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

Higher education has long been a fundamental building block upon which American democracy is based. The guarantee of free speech is itself a revered liberty in the American polity; it has, in turn, served as the catalyst for higher education. Recent events on college campuses continue to reexamine universities’ role in their students’ education and push the legal boundaries on student speech rights. In many instances, however, students’ speech and expressive viewpoint conflicts with that of other students. Other times, students’ speech conflicts with the expressive interests of their university. This Article examines the latter instance in the context of university trademarks. Gerlich v. Leath, a recent decision by the Eighth Circuit Court of Appeals, serves as a case study to elaborate on the complexities that arise when analyzing free speech rights in instances where students’ expressive interests often compete with, and sometimes conflict with, those of public colleges and universities.