TRI In The News

Attorney General: Fluco Blog Can Use County Seal

July 26, 2011

7/26/2011

TRI IN THE NEWS: ATTORNEY GENERAL: FLUCO BLOG CAN USE COUNTY SEAL

From The Daily Progress

A Fluvanna County blogger's use of the county seal is not prohibited by Fluvanna's seal ordinance, according to a court document filed by Attorney General Ken Cuccinelli.

The attorney general weighed in on the proper interpretation of Virginia law in a lawsuit between The Fluco Blog owner Bryan Rothamel and Fluvanna County through a brief filed July 14 in Charlottesville's federal court.

"In this case, a proper interpretation of the statute effectively avoids the constitutional issues using the plain meaning of the statute and should be preferred over the construction offered by the plaintiff," Cuccinelli wrote. "To the extent the plaintiff is reproducing a photograph of a county official or document in which the seal is present, or the extent he is engaged in satire, those uses are specifically authorized by law, namely, the First Amendment and court cases interpreting its scope. To the extent the plaintiff is engaged in fraudulent or misleading uses of the seal, those are not protected by law."

Rothamel filed a lawsuit in December against Fluvanna County, accusing the locality of violating his First and Fourteenth Amendments by adopting an ordinance that limits the use of the official Fluvanna seal. The blogger said he had been posting an image of the seal to accompany stories about local government and posting scanned news releases issued by the county that had the seal on them.

Frederick W. Payne, the county's attorney, sent an email to the then-interim county administrator last year that said a blogger was using the county seal to "advertise his product" and that the board wanted to research the county's right to control the seal's use. In September, the county adopted an ordinance that only permitted use of the seal with permission from the Board of Supervisors.

In February, the board approved a new version of the ordinance mirroring Virginia's code on state seals. Under the state's code, "… no persons shall exhibit, display, or in any manner utilize the seals or any facsimile or representation of the seals of the Commonwealth for nongovernmental purposes unless such use is specifically authorized by law." A violation of either version of the county ordinance could result in jail time or a fine.

Attorneys for Rothamel argued in a memorandum filed Thursday that the ordinance should be rewritten to be consistent with the First Amendment. The memo said a plain meaning of the statute would "stifle a considerable amount of speech that is protected by the First Amendment" based on words including "exhibit," "display" and "facsimile or representation," the memo said.

"When you have statute that clearly has potential to impact First Amendment rights, then the law is that it has to be precise so citizens know what they can and can't do," said Jeffrey E. Fogel, one of Rothamel's attorneys through The Rutherford Institute.

In a response to Rothamel's motion, Fluvanna's attorneys wrote that there isn't a constitutional issue within the current code.

"Mr. Rothamel is publishing articles about the county — the "speech" is the reportage, not the use of any particular symbol to denote that the article is about the county government," the brief said. "… Mr. Rothamel has no more right to use, for his own purposes, the county's seal than he would to drive a county automobile or build a home in a county park."

John W. Whitehead, the founder of The Rutherford Institute, said Cuccinelli is essentially agreeing that Rothamel can use the seal in the way that he had been on his news blog.

"In my opinion, it will be very difficult to stop people from using it," Whitehead said.