On The Front Lines

Victory: District Court Declares Fluvanna County Seal Ordinance Unconstitutional, Affirms Virginia Blogger’s Free Speech Rights

CHARLOTTESVILLE, Va. — In response to a free speech lawsuit, Judge Norman K. Moon of the U.S. District Court for the Western District of Virginia has held that Fluvanna County's seal ordinance chills expression in violation of the Free Speech Clause of the First Amendment. The ordinance makes it a crime for any member of the public to display the County's seal for non-governmental purposes. Attorneys for The Rutherford Institute filed suit against Fluvanna County in January 2011 on behalf of Virginia blogger Bryan Rothamel, arguing 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. Insisting that the constitutional rights at stake outweigh any burden on the county, the court granted Rothamel a permanent injunction that prohibits the County from enforcing the ordinance against him.

A copy of Judge Moon's opinion can be found here.

"This court decision is a resounding victory for the First Amendment right to expression," said John W. Whitehead, president of The Rutherford Institute. "This was a governmental attempt to censor a citizen's free speech and the court rightly condemned the County for it."

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.

In September 2010, the County Board adopted an ordinance declaring the County seal to be the property of the County and making it a crime for any member of the public to display the County's seal without specific authorization. Rutherford Institute attorneys sued the County in January 2011, charging that the seal ordinance chilled Rothamel's ability to exercise his First Amendment right to free expression.

In granting summary judgment in the case in favor of Rothamel and prohibiting the County from enforcing the ordinance against Rothamel, Judge Norman K. Moon of the U.S. District Court for the Western District of Virginia observed that "the deprivation of Rothamel's First Amendment freedoms easily outweighs whatever burden the injunction imposes on the County." Moreover, challenging the County's assertion that speech associated with the use of the seal is government speech, regardless of whether it was spoken by a private citizen or approved by the government, Moon held that "the use by a private individual of a government emblem like a seal is private speech or expression, not government speech." Affiliate attorney Jeff Fogel of Charlottesville, Va., assisted The Rutherford Institute in its defense of Rothamel.