On The Front Lines
Attorney General Ken Cuccinelli Lends His Support to Rutherford Institute’s Free Speech Lawsuit Over Blogger’s Use of County Seal
RICHMOND, Va. — In a move sure to up the stakes in the debate over an internet blogger's use of the Fluvanna County seal, Virginia Attorney General Kenneth Cuccinelli has weighed in on the First Amendment lawsuit filed by The Rutherford Institute. Institute attorneys filed the lawsuit on behalf of Bryan Rothamel in January 2011 in defense of the blogger's right to include an image of the Fluvanna County seal in the context of editorial/news pieces relating to county events. The lawsuit challenges a Fluvanna ordinance prohibiting the use of the seal for nongovernmental purposes, insisting that the ordinance is overbroad and prohibits a substantial amount of constitutionally-protected speech, such as the accurate depiction in a news report of a county official speaking with the seal in the background or in a parody or editorial cartoon.
In filing a friend of the court brief in Rothamel v. Fluvanna County, Attorney General Cuccinelli asserts that the county ordinance and statute reach only speech not "specifically authorized by law," and so do not forbid speech protected by the First Amendment to the U.S. Constitution. Moreover, in asking the U.S. District Court for the Western District of Virginia to construe the statute and ordinance narrowly so that protected expression, such as that engaged in by Bryan Rothamel, is not prohibited, Cuccinelli argues that the lawsuit could imperil a Virginia statute that restricts display of the seal of the Commonwealth.
The Rutherford Institute's complaint and the Attorney General's brief in Rothamel v. Fluvanna County are available here and here.
"I am pleased that the Attorney General recognizes that Bryan Rothamel's use of the county seal is protected by the First Amendment," said John W. Whitehead, president of The Rutherford Institute. "Unfortunately, Fluvanna County officials disagree with Mr. Cuccinelli and are attempting to censor Mr. Rothamel's use of the seal."
Since October 2009, Bryan Rothamel has operated a blog entitled "FLUCO" in which he writes and reports about news and other events occurring in Fluvanna County and its environs, as well as the activities of the Fluvanna County government. In connection with relevant reports and articles, Rothamel occasionally includes an image of the county's seal to illustrate the subject of the article. Rothamel also includes verbatim news releases from the county which he scans onto the website.
On September 15, 2010, the County Board adopted an ordinance declaring the seal to be the property of the county and providing that "[n]o person, entity or organization shall exhibit, display, or in any manner utilize the seal or any copy, replication, facsimile or representation of the seal, . . ., unless such use shall have been expressly authorized by the board of supervisors." After the lawsuit was filed, the county enacted a new ordinance which mirrors the terms of a Virginia statute, which provides that "no persons shall exhibit, display, or in any manner utilize the seal or any facsimile or representation of the seal of the Commonwealth for nongovernmental purposes unless such use is specifically authorized by law." Rutherford Institute attorneys charge that the seal ordinance has chilled Rothamel's ability to exercise his First Amendment right to free expression.
