Rothamel v. Fluvanna County, Virginia
Filing
37
MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 9/2/11. (jcj)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
BRYAN ROTHAMEL,
CASE NO. 3:11-cv-00002
Plaintiff,
v.
MEMORANDUM OPINION
FLUVANNA COUNTY, VIRGINIA,
Defendant.
JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA,
Amicus Supporting Defendant.
This matter is before the Court upon Plaintiff’s Motion for Summary Judgment (docket
no. 23) and Defendant’s Response to Motion for Summary Judgment (docket no. 25). At
Defendant’s request, and upon the consent of Plaintiff, Defendant’s response in opposition shall
be converted into a cross-motion for summary judgment.1 The parties agree to submit the matter
for decision on the motions and to dispense with the need for a bench trial. I have fully
considered the arguments and authorities set forth in the parties’ filings, as well as those
presented at the August 11, 2011 hearing. For the following reasons, I will grant Plaintiff’s
motion for summary judgment and deny Defendant’s motion.
I. BACKGROUND
Plaintiff Bryan Rothamel challenges the constitutionality under the First Amendment of
an ordinance of Fluvanna County, Virginia that restricts the display or use of the image of the
1
See Fed. R. Civ. P. 56(f) (“After giving notice and a reasonable time to respond, the court may . . . grant summary
judgment for a nonmovant.”).
1
official seal of Fluvanna County (the “County”).
Plaintiff requests a declaration that the
ordinance violates the First Amendment of the United States Constitution and that his uses of the
seal constitute protected speech under the First Amendment. Rothamel also seeks injunctive
relief. Since October 2009, Rothamel has operated a blog on the Internet entitled “FLUCO,”
found at http://flucoblog.com, for which he writes about news and events in Fluvanna County.
On numerous occasions, Rothamel placed the official seal of the County next to or preceding
news articles and commentary that concerned the County. Rothamel’s inclusion of the seal near
the articles was intended to indicate that the written material was about County government. See
Rothamel Decl. ¶ 3. Rothamel also scanned into his computer and displayed on his blog
verbatim news releases issued by the County on which the County had already affixed the
official seal. Id. These were represented as County news releases. Rothamel did not display the
seal on the blog for commercial purposes. Id. at ¶ 7.
Fluvanna County is authorized by the Commonwealth to have a county seal. Va. Code
Ann. § 15.2-1402. Although the County had used its official seal for several years, it had never
adopted the seal by ordinance or formally provided for regulation of its use. On September 15,
2010, the County held a public meeting to consider the adoption of an ordinance prohibiting the
display of the Fluvanna County seal unless expressly authorized by the Fluvanna County Board
of Supervisors (the “Board”). Rothamel claims that the ordinance was proposed to curtail his use
of the seal. He attested that “shortly before the enactment of the ordinance, I learned that some
supervisors were upset about my blog and intended to prohibit my use of the county seal.”
Rothamel Decl. ¶ 5. Rothamel submitted into the record the cover email used by the County for
the draft ordinance, which showed that the ordinance was drafted at the direction of the Board
after having been apprised that “a blogger had begun using the seal on the internet to advertise
2
his product.” Also in the record is a copy of the minutes from the Board’s September 15, 2010
meeting on the ordinance. In introducing the ordinance for discussion and vote, a member of the
Board made the following statement:
What triggered this, was, if the Board will recall, a couple of
months ago, we discovered that the County Seal was being used on
a private website on the internet and there were several people that
misunderstood the use of the County Seal and thought this was
official publication of the County. It wasn’t, it was a private
citizen and that’s what triggered this. I suggested that one way to
deal with this would be to adopt an ordinance; because if you adopt
an ordinance it becomes part of the county code and it gives
greater public notice of the county’s policy in this regard.
Rothamel was the only member of the public to make a comment at the meeting once it
was opened for public discussion. Rothamel stated that he believed that it was his use of the seal
on his blog that caused the Board to draft the ordinance. Rothamel explained that his display of
the seal on his blog was for news reporting and criticism. He asked whether his use of the seal
would be permitted under federal law or whether it would violate the proposed ordinance. In
response, a member of the Board made clear that “[Rothamel’s] actions were the precipitating
cause of formalizing this,” but his actions were not “the object” of the ordinance. Rather, the
ordinance’s purpose was to clarify the County’s policy on the use of the seal to the public and to
ensure that the seal is not used to mislead another into thinking that a private individual is
“acting on official county business” when he is not. With regard to Rothamel’s request for
clarification about the permissibility of his particular use of the seal, a member of the Board
stated:
It is a matter of fact, there is authority that using . . . [the] seal
without authority is in fact imperatively unlawful. Now I haven’t
gotten into that and I’m not trying to intimidate anybody, if Mr.
Rothamel thinks he has got the right to use it then he can go ahead
and do it and if he infringes it then it will be up to the county to
decide if it wants to try and to enforce this against him and if it
3
does then he will have an opportunity to defend it. But he is not
the object of this. . . . Now if Mr. Rothamel has got the right to do
this by Federal law or some other way, then he has a perfect right
to assert that.
The proposed ordinance was adopted by the County at the September 15, 2010 meeting.
Rothamel stopped displaying the seal after the ordinance’s adoption for fear of being subject to
criminal prosecution. Rothamel Decl. ¶ 6. He brought this suit for declaratory and other relief
on January 3, 2011. The County amended the ordinance on February 16, 2011, and it is the
amended version that is being challenged here.2 The ordinance has not been enforced against
Plaintiff. The current regulation states as follows:
Article 7. Official County Seal
Sec. 2-7-1. Adoption of County Seal.
The seal of Fluvanna County is hereby adopted to be the seal
currently in use by the County. The seal consists of a picture of
the historic former Point of Fork Arsenal showing the Fluvanna
River in the background with a branch from a persimmon tree
above it in a circle, surrounded by the words “FLUVANNA
COUNTY VIRGINIA—1777”. The seal shall still constitute the
seal whether in black and white, color or other hue or tone
combination and regardless of the size, character or medium in
which the same shall be depicted. (Ord. 9-15-10)
Sec. 2-7-2. Seal Deemed Property of the County; Unauthorized
Use Prohibited.
The seal of Fluvanna County shall be deemed the property of the
County; and no person shall exhibit, display, or in any manner
utilize the seal or any facsimile or representation of the seal of
Fluvanna County for non-governmental purposes unless such use
is specifically authorized by law. (Ord. 9-15-10; Ord. 2-16-11)
Sec. 2-7-3. Violation and Penalty.
2
Plaintiff initially challenged the September 15, 2010 ordinance and then filed an amended complaint on March 8,
2011, after the ordinance was revised.
4
Any person violating the provisions of this section shall be
punished by a fine of not more than $100, or by imprisonment for
not more than 30 days or both. (Ord. 9-15-10; Ord. 2-16-11)
The Commonwealth of Virginia (the “Commonwealth”) appears in this matter as an
amicus curiae and supports the County’s position because the language of the state statute
restricting the use of the official state seal closely tracks that of the ordinance. The state statute
implicated by this suit provides as follows:
§ 1-505. Seals deemed property of Commonwealth; unauthorized
use; penalty
The seals of the Commonwealth shall be deemed the property of
the Commonwealth; and 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.
Except for the authorized commercial use of the seal as provided in
§ 2.2-122, any person violating the provisions of this section shall
be punished by a fine of not more than $ 100, or by imprisonment
for not more than 30 days or both.
Va. Code Ann. § 1-505.
II. APPLICABLE LAW
The court should grant summary judgment if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In order to preclude summary judgment, the dispute about
a material fact must be “‘genuine,’ that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001). Once a motion for summary judgment is properly made and supported, the non-moving
5
party may not rely merely on allegations or denials in its own pleading, rather it must set out
“specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324.
When considering summary judgment motions, courts must view the facts in the light most
favorable to the party opposing the motion. Austin v. Clark Equip. Co., 48 F.3d 833, 835 (4th
Cir. 1995). “[T]he court must draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The standard is the same for cross-motions for summary judgment. The court must
consider “each motion separately on its own merits to determine whether either of the parties
deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.
2003) (quotations omitted). If the court finds that there is a genuine issue of material fact, both
motions must be denied. 10A The Late Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2720 (3d ed. 2010). “But if there is no genuine issue
and one or the other party is entitled to prevail as a matter of law, the court will render
judgment.” Id.
III. SUBJECT MATTER JURISDICTION
A court may consider matters of subject matter jurisdiction sua sponte. Fed. R. Civ. P.
12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”); United States v. Hays, 515 U.S. 737, 742 (1995) (“The question of
standing is not subject to waiver. . . . The federal courts are under an independent obligation to
examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional]
doctrines.’”) (citation omitted); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999) (“[I]t is well settled that a federal court is obligated to inquire into subject matter
6
jurisdiction sua sponte whenever it may be lacking.”).
“[T]he irreducible constitutional
minimum of standing contains three elements”: (1) an “injury in fact,” meaning an injury that is
“concrete and particularized” and “actual or imminent”; (2) a “causal connection between the
injury and the conduct complained of,” meaning that the injury is fairly traceable to the
defendant’s actions; and (3) a likelihood that the injury “will be redressed by a favorable
decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks
omitted). “The party invoking federal jurisdiction bears the burden of establishing” the elements
of standing. Id. at 561.
The dispositive inquiry here involves the test’s first prong: the existence of an actual or
threatened injury.3
Because the ordinance has not been enforced against Plaintiff, I must
consider whether Plaintiff was subjected to a credible threat of prosecution. As the Supreme
Court has made clear, it is not necessary that a person expose himself to arrest or prosecution
under a statute in order to challenge that statute in a federal court. See Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979); Steffel v. Thompson, 415 U.S. 452, 458-60
(1974). Rather, a credible threat of present or future prosecution under a criminal statute itself
works an injury that is sufficient to confer standing to mount a pre-enforcement challenge to that
statute. N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999); accord Doe v.
Bolton, 410 U.S. 179, 188 (1973). In the First Amendment context, “[a] non-moribund statute
that facially restricts expressive activity by the class to which the plaintiff belongs presents such
a credible threat, and a case or controversy thus exists in the absence of compelling evidence to
3
If Rothamel suffered a cognizable injury, the second and third prongs of the test are easily met. Any injury can be
traced to the existence and threatened enforcement of the challenged ordinance and would be redressable through
declaratory or injunctive relief.
7
the contrary.” N.C. Right to Life v. Bartlett, 168 F.3d at 710 (internal quotation marks omitted).4
“This presumption is particularly appropriate when the presence of a statute tends to chill the
exercise of First Amendment rights.” Id.; see also Virginia v. Am. Booksellers Ass’n, Inc., 484
U.S. 383, 393 (1988) (allowing a First Amendment pre-enforcement suit where the existence of
“an actual and well-founded fear that the law will be enforced against [the plaintiffs]” is alleged).
The Supreme Court has cautioned, however, that fears of enforcement that are “imaginary or
wholly speculative” are insufficient to confer standing. Babbitt, 442 U.S. at 302.
The Supreme Court has found the existence of a credible threat of prosecution where a
for-profit fundraising company alleged that it was directly informed by the Secretary of State of
Maryland that if it refused to comply with the provisions of a statute governing charitable
organizations, it would be prosecuted. Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S.
947, 954-55 (1984). The company bringing suit also alleged that it lost a contract because of the
limitation imposed by the law. Id. at 954. In another case, the Supreme Court held that a person
distributing handbills at a shopping center had standing to challenge a statute where he was twice
warned to stop handbilling and was told by the police that “if he again handbills at the shopping
center and disobeys a warning to stop he will likely be prosecuted.” Steffel, 415 U.S. at 459.
Further, the plaintiff’s companion, who was also handbilling, was actually prosecuted,
demonstrating the credibility of the threat. Id.
Prosecution of a plaintiff need not be explicitly threatened for the plaintiff to show the
existence of a credible threat of arrest. In North Carolina Right to Life v. Bartlett, a group
challenged, among other things, North Carolina’s definition of “political committee” after it
4
The test for standing set forth in North Carolina Right to Life v. Bartlett was reaffirmed by the United States Court
of Appeals for the Fourth Circuit in North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008).
There, the court found that “[s]ince the statutes challenged by the plaintiffs threaten to subject them to prosecution,
and the plaintiffs are therefore ‘chilled’ from engaging in potentially protected First Amendment political
expression, standing exists in this case.” Id. at 279 n.2.
8
became concerned that it might be considered a “committee” if it distributed a voter guide, a
status that would require it either to register and regularly file reports or to face criminal
penalties. 168 F.3d at 709. To ascertain whether that fear was well-founded, the group wrote to
the State Board of Elections, which “did not indicate that it would interpret the statute to mean
anything other than what its plain language would suggest.” Id. at 710. Although in the twentyfive years since the statute’s enactment, the State had never interpreted it to apply to groups
engaging only in issue advocacy, the plaintiff group refrained from distributing its guide based
on the possibility of prosecution. Id. The group brought suit in federal district court challenging
North Carolina’s definition of political committee on the ground that it included entities that
engage solely in issue advocacy. Id. at 709. On these facts, the United States Court of Appeals
for the Fourth Circuit found that the plaintiff’s fear of prosecution was reasonable because the
statute’s plain language appeared to apply to its distribution of voter guides. Id. at 710.
The Fourth Circuit rejected the State’s argument that its assurance that it does not
interpret the statute to encompass issue advocacy—a position that the State took in litigation—
rendered the threat of prosecution speculative. Id. at 710-11. In the absence of a formal rule
exempting issue advocacy from the statute, the court observed that the plaintiff would be left
“with nothing more than the State’s promise” that it would not seek prosecution. Id. at 711.
Without a guarantee that the State “might not tomorrow bring its interpretation more in line with
the provision’s plain language,” the court held that the plaintiff “will suffer from the reasonable
fear that it can and will be prosecuted for failing to register and file the necessary disclosures,
and its constitutionally protected speech will be chilled as a result.” Id.; see also Va. Soc’y for
Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 388 (4th Cir. 2001) (suggesting, in
dicta, that a federal agency’s policy of nonenforcement, which was adopted in a closed meeting
9
and recorded in the meeting minutes, might not be sufficient to remove the threat of prosecution
because “[a] simple vote of the [Federal Election Commission] . . . could scuttle the policy”).
The County ordinance at issue in this case, like the statute in North Carolina Right to Life
v. Bartlett, facially restricts expressive activity.5 By its plain language, it prevents individuals
from using or displaying the seal for nongovernmental purposes unless specifically authorized by
law.6 No exemption is provided in the ordinance for use of the seal in news reporting and
commentary, as Rothamel employed it. The record shows that Rothamel displayed the seal on
his blog on numerous occasions but discontinued use of the seal upon the adoption of the
ordinance for fear of being subject to criminal prosecution for his activities. Although Rothamel
would like to continue displaying the seal on his blog, his speech is being chilled by the
ordinance, violations of which carry a criminal penalty and up to thirty days imprisonment. He
sought informal guidance from the County Board of Supervisors about its applicability to his use
of the seal, but received no assurance that his use of the seal did not fall under the ordinance.
Instead, the Board stated “if Mr. Rothamel thinks he has got the right to use it then he can go
ahead and do it and if he infringes it then it will be up to the county to decide if it wants to try
and to enforce this against him and if it does then he will have an opportunity to defend it.” The
Board deflected Rothamel’s attempt to discern the precise scope of the ordinance by deferring to
the ordinance itself, emphasizing that the ordinance provided adequate notice to the public of the
Board’s policy on use of the seal. The situation presented here is remarkably similar to that in
North Carolina Right to Life v. Bartlett, where the for-profit fundraising group sought guidance
5
The County ordinance, having been recently adopted, was not moribund. Compare to Doe v. Duling, 782 F.2d
1202, 1204, 1206 (4th Cir. 1986) (holding that plaintiffs failed to show “even a remote chance that they are
threatened with prosecution” under law prohibiting fornication and cohabitation, which had not resulted in a
conviction since 1883 and was “a matter of historical curiosity”).
6
I address the interpretation of the phrase “specifically authorized by law” in greater detail in my discussion on the
merits.
10
from the State on the legality of their activities under the statute, and the State directed the group
to the statute’s plain language. The Fourth Circuit found that the group reasonably believed
there was a credible threat of prosecution from the State, even though the statute had never been
enforced in that manner in its twenty-five year history. Here, the ordinance’s recent vintage and
lack of enforcement history yields even greater uncertainty about how it might be interpreted and
enforced.
The possibility that the ordinance was drafted and passed directly in response to
Rothamel’s use of the seal further separates this case from one in which the threat of
enforcement is merely “imaginary or wholly speculative.” Although the evidence in the record
is not sufficient for me to find that the County drafted the ordinance with the intention of making
Rothamel’s particular use of the seal criminally punishable, it is hard to mistake that the display
of the seal on Rothamel’s blog raised the issue of the seal’s private use to the attention of the
County and was “the precipitating cause of formalizing” the County’s policy on the seal.
Naturally one whose conduct triggers the drafting of a criminal proscription, the language of
which plainly encompasses that conduct, has reason to fear prosecution for that conduct. The
Fourth Circuit has recognized as much. See Ostergren v. Cuccinelli, 615 F.3d 263, 270 n.7 (4th
Cir. 2010) (finding standing to bring First Amendment challenge to Virginia’s Personal
Information Privacy Act where the Act had been amended in direct response to the plaintiff’s
display of social security numbers on her website).7
The County fails to supply compelling evidence to overcome the presumption that a case
or controversy has been presented by the facially restrictive ordinance. I am directed to three
postings on Rothamel’s blog after this suit was initiated that incidentally display the official seal
7
It was also evident that a credible threat of enforcement existed in Ostergren because there the Virginia Attorney
General had informed the plaintiff that he planned to initiate prosecution of her. Ostergren v. Cuccinelli, 615 F.3d
263, 269, 270 n.7 (4th Cir. 2010).
11
of the Commonwealth in the background of photographs of Board members. This, argues the
Commonwealth, shows that Rothamel was not actually chilled by the ordinance governing the
County seal, as the laws regulating use of the seals of the County and the Commonwealth are
nearly identical. But Rothamel has not claimed that his expressive use of the state seal has been
chilled, and the state statute is not before me today. Rothamel’s claim that the County ordinance
has chilled his expressive use of the County seal has not seriously been questioned. Further,
though the text of the laws is similar, the state statute was not passed in response to Rothamel’s
actions, the state statute has a lengthier enforcement history from which Rothamel might draw
different conclusions about his susceptibility to prosecution, and the display of a photograph
including a seal is not the same use of the seal as is presently implicated.
The County takes the position in litigation that it would not prosecute Rothamel’s display
of the seal next to news stories or in official news releases. The County’s post-suit promise that
it will not seek prosecution does not render the threat of enforcement against Rothamel
speculative in light of the continuing danger that the plain language of the ordinance will be
interpreted in the future to proscribe the uses of the seal contemplated by the plaintiff. See N.C.
Right to Life v. Bartlett, 168 F.3d at 711; cf. United States v. Stevens, 130 S. Ct. 1577, 1591
(2010) (“[T]he First Amendment protects against the Government; it does not leave us at the
mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the
Government promised to use it responsibly.”). In sum, I am assured that the plaintiff has
standing to bring this action.
IV. FIRST AMENDMENT CHALLENGE
Rothamel first attacks the constitutionality of the ordinance under the First Amendment
as applied to his display of the seal next to news stories and his posting of official County news
12
releases containing the seal.
The County, apparently recognizing the possibility that the
application of the ordinance to Rothamel’s expressive activity would be unconstitutional, takes
the position that the ordinance can and should be interpreted so that it does not forbid the manner
in which Rothamel displayed and wishes to continue displaying the seal. The County recites the
principle that a court should apply a narrowing construction to a statute to save an otherwise
unconstitutional law. See Gonzales v. Carhart, 550 U.S. 124, 153-54 (2007) (stating that it is an
elementary rule of statutory construction that every reasonable construction should be utilized to
save a statute from unconstitutionality); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988) (holding that “where an otherwise acceptable
construction of a statute would raise serious constitutional problems, [the statute should be
construed] to avoid such problems unless such construction is plainly contrary to the intent of
Congress”). The Supreme Court has explained that narrowing constructions are only appropriate
where “the text or other source of congressional intent identifie[s] a clear line that [a] [c]ourt
could draw.” Reno v. ACLU, 521 U.S. 844, 884 (1997). Courts must be careful not to invade
upon the legislative domain, and a court should never “rewrite a . . . law to conform it to
constitutional requirements.” Reno, 521 U.S. at 884-85. But a narrowing construction of a state
law is not binding upon state courts because a federal district court lacks jurisdiction to
authoritatively construe state legislation. Va. Soc’y for Human Life, 152 F.3d at 270. Thus, even
if this Court interprets the ordinance such that it does not reach the speech of Rothamel, his
speech may still be chilled because a state court could adopt a broader construction of the
ordinance sufficient to reach Rothamel’s speech and obtain a conviction. See id. Yet the
Supreme Court has stated that if a narrowing construction of a state statute “is reasonable and
readily apparent,” then federal courts have the power and the duty to issue such an interpretation.
13
Boos v. Barry, 485 U.S. 312, 330 (1988); see also Legend Night Club v. Miller, 637 F.3d 291,
300-01 (4th Cir. 2011); Va. Soc’y for Human Life, 152 F.3d at 270.
Without a narrowing construction, the ordinance would undoubtedly forbid Rothamel
from displaying the seal in the ways in which he desires.
His uses of the seal are
nongovernmental and entail displaying a facsimile or representation of the seal on his blog. To
avoid the question of whether the County can constitutionally prohibit such speech, the County
urges the Court to construe broadly the exemption contained in the ordinance for uses of the seal
“specifically authorized by law.” According to the County and the Commonwealth, the term
“law” includes federal, state, and local legislative enactments, as well as the U.S. Constitution
and the Constitution of the Commonwealth of Virginia and the body of federal and state law
interpreting them. In other words, the ordinance should be read to exclude from its proscription
all uses of the seal that would constitute protected speech under the First Amendment.
The problem with the County’s proposed reading of the ordinance’s exception is that it
ignores the requirement that the law “specifically” authorize the use of the seal. “Specifically” is
defined as “[i]n a specific or definite form or manner.” Oxford English Dictionary (def. 2) (2d
ed. 1989).
“Specific,” in turn, is defined as “[p]recise or exact in respect of fulfilment,
conditions, or terms; definite, explicit,” id. (def. 4(a)), or “[e]xactly named or indicated, or
capable of being so; precise, particular,” id. (def. 4(b)). The use of the adverb “specifically” as a
modifier of the type of legal authorization needed to exempt the use of the seal indicates that the
legal authorization must be precise, definite, or explicit. The phrase “unless . . . authorized by
law,” on its own, is far-reaching. The addition of the term “specifically” by the drafter of the
ordinance to the phrase “authorized by law” shows the drafter’s intent to limit the reach of the
exception, which otherwise might be construed expansively. It is most likely that the phrase
14
“specifically authorized by law” is meant to allow uses of the seal that are explicitly permitted by
a legislative enactment or a County governing body, though a binding case that is exactly on
point would probably also suffice.8 Giving effect to the word “specifically” suggests a narrow
interpretation of the exception that is contrary to the sweeping construction proposed by the
County. The County’s reading of the exception is only reasonable if the word “specifically” is
struck altogether.
Doing so would not be consistent with the general rules of statutory
construction, which direct courts to presume that legislatures use each word for a reason and to
attempt to construe laws to give effect to every word. See TRW, Inc. v. Andrews, 534 U.S. 19, 31
(2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to
be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.”) (internal quotation marks omitted); Reiter v. Sonotone Corp., 442 U.S.
330, 339 (1979) (providing that a court is “obliged to give effect, if possible, to every word [the
legislature] used”); Virginia v. Browner, 80 F.3d 869, 877 (4th Cir. 1996) (stating that a court
should not “construe a statute in a manner that reduces some of its terms to mere surplusage”).
Legislatures know how to draft exceptions to prohibitions for protected First Amendment
activity. The phrasing of the exception in this ordinance does not resemble other recognized
exceptions. For example, in Schleifer v. City of Charlottesville, a Charlottesville ordinance
established a nocturnal curfew for minors under the age of seventeen but provided an exception
for those minors who are “exercising First Amendment rights protected by the United States
Constitution, such as the free exercise of religion, freedom of speech and the right of assembly.”
8
No binding case addressing the extent to which legislatures lawfully can prohibit use of an official government seal
under the First Amendment has been cited by the parties, and I have located none. In a case decided by the Alaska
Court of Appeals, a state statute forbidding the use of the official state seal “for any advertising or commercial
purpose” was upheld because the regulation was narrowly drawn so that it did not prohibit any non-commercial uses
of the state seal. State v. Robart, 988 P.2d 1114, 1115 (Alaska Ct. App. 1999). Even if considered, this case does
not address the authority to prohibit the non-commercial speech at issue here.
15
159 F.3d 843, 853 (4th Cir. 1998). The court upheld the ordinance against the assertion that the
exception was unconstitutionally vague because it accorded standardless discretion to law
enforcement officers and it forced citizens to learn a complex body of constitutional law in order
to comprehend its scope. Id. In contrast to the Fluvanna County ordinance, which does not
name the First Amendment, the Charlottesville ordinance clearly exempts persons exercising
their First Amendment rights. The Fluvanna County ordinance also does not resemble more
particular exceptions for protected First Amendment activity, which appear in a variety of
settings. See, e.g., 18 U.S.C. § 504 (exempting, from prohibition on counterfeiting, the printing
of illustrations of United States postage stamps and currency subject to restrictions on the color
and size of such illustrations and ensuring that the reproduction of such illustrations for the
“legitimate use” of “businesses, hobbyists, press or others” is not “unduly restricted”); Va. Code
Ann. § 4.1-226(2) (providing for penalties for certain erotic activities in an alcohol-licensed
establishment but exempting “persons operating theaters, concert halls, art centers, museums, or
similar establishments that are devoted primarily to the arts or theatrical performances, when the
performances that are presented are expressing matters of serious literary, artistic, scientific, or
political value”).
I take seriously my obligation to construe an enactment to avoid problems of
constitutionality, but I cannot find the ordinance “readily susceptible” to the narrowing
interpretation proffered by the County. See Legend Night Club, 637 F.3d at 300.9 The County
could have provided for a broad exception for the exercise of First Amendment rights if it so
desired, but instead it limited the exemption to specifically authorized uses. I do not have the
power to rewrite the ordinance to conform it to constitutional requirements. Reno, 521 U.S. at
9
Having determined that the interpretation of the ordinance proposed by the County and the Commonwealth is not
available under its plain language, I decline to certify the question to the Supreme Court of Virginia.
16
884-85. Because I find that Rothamel’s display of the seal falls under the prohibition of the
ordinance, I must proceed to assess whether the ordinance infringes on Rothamel’s right to free
speech.
The parties disagree about which level of review applies to this ordinance. Rothamel
argues that his display of the seal constitutes speech, and therefore the restriction on his speech is
invalid unless the County shows it has a compelling interest and has used the least restrictive
means of furthering that interest. This type of judicial review is known as strict scrutiny. See
Sable Commc’ns of Cal., Inc. v. Fed. Commc’ns Comm’n, 492 U.S. 115, 126 (1989). In contrast,
the County takes the position that Rothamel’s display of the seal does not involve the use of the
written or spoken word to convey his message, so it should be viewed as expressive conduct and
reviewed under intermediate scrutiny. Pursuant to that level of review, the law will be upheld if
the government shows the law is necessary to achieve a substantial or important governmental
interest, and the law is narrowly tailored to that interest. United States v. O’Brien, 391 U.S. 367,
376-77 (1968). Both positions have some merit. I need not decide this question, though,
because I find that the ordinance cannot survive even the intermediate standard of review urged
by the County.
The County submits that the purpose of the ordinance is “to prohibit nongovernmental
uses of the Seal . . . that would have the effect of implying the authorization and approval of the
County government when it had neither authorized nor approved the use.” Def.’s Resp. Mot.
Summ. J. at 3. The interest in preventing private individuals or entities from conveying the false
impression of having governmental sponsorship or approval is surely an important one. Thus, I
must focus on whether the ordinance is narrowly tailored to further that interest. The ordinance
makes criminal a wide range of activity. Unless the exhibition, display, or use of the seal or an
17
exact copy or representation of the seal is for governmental purposes or is specifically
authorized, it is illegal and punishable by fine or imprisonment under the ordinance. This
sweeping prohibition encompasses a substantial number of uses of the seal that would not
suggest government endorsement, such as the display on a website of an exact copy of an official
County news release that contains the image of the seal next to the text, or the publication in a
newspaper of a photograph of a County official delivering a speech from a podium upon which
the County seal is attached and visible. Comparison of the County’s regulation of the seal with
the federal law governing the use of national government seals is illuminating. Title 18, Section
713 regulates the use of likenesses of the great seal of the United States, the seals of the
President and Vice President, the seal of the United States Senate, the seal of the United States
House of Representatives, and the seal of the United States Congress. It provides for criminal
penalties for the knowing display of “any printed or other likeness . . . or any facsimile” of the
aforementioned seals “for the purpose of conveying, or in a manner reasonably calculated to
convey, a false impression of sponsorship or approval by the Government of the United States or
by any department, agency, or instrumentality thereof.” 18 U.S.C. § 713(a).10 The carefully
drawn proscription presented in the federal law stands in marked contrast to the blanket
prohibition here. The County ordinance curbs too much expression to be narrowly tailored to
further the County’s legitimate interest in preventing the seal’s deceptive or misleading use.
Under intermediate scrutiny, the ordinance’s overinclusive reach is fatal. The County has failed
to show that the ordinance is narrowly tailored to achieve its purpose of preventing the use of the
seal to convey a false impression of government sponsorship or approval.
10
For another example of a narrowly tailored provision, consider 18 U.S.C. § 715, which restricts use of “The
Golden Eagle Insignia.” The insignia consists of the words “The Golden Eagle” and the representation of the
American Golden Eagle and a family group enclosed within a circle and framed by a rounded triangle. Section 715
criminalizes reproduction or use of the insignia or any facsimile thereof “in such a manner as is likely to cause
confusion, or to cause mistake, or to deceive.”
18
The County alludes to another interest it has in restricting the display of the seal: its
interest in using its own property as it sees fit. The County takes the position that the showing of
the seal by private citizens is not a form of expression at all; rather, the seal is government
property, like a government vehicle or other form of personal property. The County states that
Rothamel has no more right to display the County seal than he does to drive the County’s
automobile. Equating the appropriation of physical government property with the use of a
likeness of an official government seal for expressive purposes does not pass muster in light of
the history of treating private, expressive use of government emblems as private speech or
expression. See Spence v. Washington, 418 U.S. 405, 408-09 (1974) (distinguishing expression
associated with privately-owned American flag from use of a flag that was government
property); Texas v. Johnson, 491 U.S. 397, 413-15 (1989) (recognizing that even though the
American flag serves as an important symbol of nationhood, the government is not permitted to
control the message expressed by a private citizen’s use of the flag); W. Va. Bd. of Educ. v.
Barnette, 319 U.S. 624, 632 (1943) (stating that use of an emblem or flag often takes a form of
symbolism comprising a “primitive but effective way of communicating ideas” and “a short cut
from mind to mind”); cf. Time, Inc. v. Regan, 539 F. Supp. 1371, 1383 (S.D.N.Y. 1982) (treating
reproductions of images of United States currency in magazines as protected speech), aff’d in
part, rev’d in part on other grounds, 468 U.S. 641 (1984) (implicitly accepting lower court’s
treatment of private use of images of currency in magazines as speech). While the County is
correct that Rothamel does not have the right to take possession of a physical seal owned by the
County, the County cannot control all privately-owned images or representations of the seal
simply by declaring an interest in managing its own property. The First Amendment requires a
more specific and substantial interest in restricting speech than the broad desire to safeguard
19
government property. The County asserts that the central issue of this case is “the extent to
which the County can protect its own property from misuse.” Def.’s Resp. Mot. Summ. J. at 4.
The only form of misuse of the likeness of the seal identified by the parties, however, is its
display in such a manner as to imply County sponsorship or approval of a private message with
which the County has not agreed to be associated. As I stated above, this ordinance is not
particularly adapted to preventing deceptive displays of the seal’s image.
I pause to note the property-based arguments that have not been asserted by the County
as grounds for curtailing private display of the seal and of which I express no opinion. The
County has not claimed that it has a substantial and important interest in limiting the seal’s use
because the County originally designed the emblem. Nor has the County claimed that its “own
talents and energy,” through “much time, effort, and expense,” produced a seal that held
considerable value. See S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533
(1987) (upholding law awarding the United States Olympic Committee the exclusive right to use
the word “Olympic” for commercial and promotional purposes) (quoting Zacchini v. ScrippsHoward Broad. Co., 433 U.S. 562, 575 (1977)). It has not argued that even where display of the
seal by private actors does not convey a false impression of government sponsorship,
unconstrained display of the seal by the public dilutes the value of the seal as a unique signifier
of County government. See S.F. Arts & Athletics, 483 U.S. at 539 (recognizing that most of the
value of the word “Olympic” comes from its limited use). If there is merit to the County’s
interest in protecting its intangible property, the County has not met its burden of articulating a
property interest sufficiently particular and important to meet its burden under the First
Amendment.
20
The County insists that the ordinance remains constitutional under the theory that any
display of the seal is government speech that the County can constitutionally control. The
County begins with the well-founded proposition that the Free Speech Clause of the First
Amendment does not regulate government speech, it only restricts government regulation of
private speech. See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005). A government
entity “is entitled to say what it wishes,” Rosenberger v. Rector & Visitors of the Univ. of Va.,
515 U.S. 819, 833 (1995), and to select the views it wants to express, see Rust v. Sullivan, 500
U.S. 173, 194 (1991). The County argues that the seal conveys the imprimatur of government
approval of the speech accompanying it and therefore 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. As government speech, the County argues that it may be regulated like any
piece of government property and without concern for the First Amendment. The County cites
Pleasant Grove City v. Summum, 555 U.S. 460, 129 S. Ct. 1125 (2009) as authority supporting
its stance on this issue. In Pleasant Grove City, the Supreme Court held that Pleasant Grove
City’s placement, in a public park, of permanent monuments built and donated by private groups
was a form of government speech and therefore was not subject to scrutiny under the Free
Speech Clause. 129 S. Ct. at 1129. It reasoned that persons who observe donated monuments
displayed on public property routinely and reasonably interpret them as conveying some message
on the property owner’s behalf.
Id. at 1133.
When governmental bodies accept donated
monuments and place them on public property, the monuments are meant to convey and have the
effect of conveying a government message. Id. at 1134. The Court emphasized that cities take
some care in determining which monuments among those offered for donation to select for
21
permanent display, as the character of city parks plays an important role in defining the identity
that a city projects to others. Id.
Importantly, the Court in Pleasant Grove City did not consider the monuments to be
government speech simply because they became government property upon their acceptance by
the government from private donors. Instead, the monuments represented government speech
because governments intend the exhibition of monuments in public spaces to transmit a message,
and persons visiting those monuments view those monuments as communicating a public
message. The circumstances under which the Court treated public monuments as government
speech are quite different from those in this case. Here, every use of the seal plainly does not
have the effect of imparting a government message, nor is every use intended by the government
to communicate something. Indeed, the County concedes that the display of the seal next to
news commentary on Rothamel’s blog and the reproduction of news releases containing the seal
do not convey the impression of government sponsorship of the blog. Thus, the use by a private
individual of a government emblem like a seal is private speech or expression, not government
speech.
For the reasons I have discussed, and in consideration of the County’s concession that
Rothamel’s display of the seal on his blog does not convey a false impression of government
approval of his speech, I hold that the ordinance violates the Free Speech Clause of the First
Amendment as applied to Rothamel’s uses. Rothamel further claims that the ordinance bans a
substantial amount of free expression and is therefore overbroad. See Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 450 n.6 (2008) (stating that a law may be
invalidated as overbroad if “a substantial number of its applications are unconstitutional, judged
in relation to the statute’s plainly legitimate sweep”) (internal quotation marks omitted). Having
22
found the ordinance unconstitutional as applied to Plaintiff’s employment of the seal, I need not
consider the ordinance’s facial sufficiency. See Texas, 491 U.S. at 403 n.3 (declining to address
facial constitutionality argument); Spence, 418 U.S. at 414 n.9 (same).
As to relief, this Court should declare that the County’s ordinance violates the Free
Speech Clause of the First Amendment when applied to Rothamel’s display of the seal. See
Steffel, 415 U.S. at 475 (stating that declaratory relief may be appropriate on a First Amendment
as-applied challenge to the threatened enforcement of a state criminal law).
I will grant
Rothamel a permanent injunction that prohibits the County from enforcing the ordinance against
him for the two ways in which Rothamel had been displaying and wishes to continue displaying
the County seal. Under “well-established principles of equity,” a plaintiff seeking a permanent
injunction must demonstrate: (1) that he has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be disserved by a permanent
injunction. Legend Night Club, 637 F.3d at 297 (quoting eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388, 391 (2006)). “The loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976)
(plurality opinion). The chilling of Rothamel’s expressive activity since the promulgation of the
ordinance, causing Rothamel to forgo constitutionally protected activity out of a fear of arrest,
thus constitutes irreparable injury. Monetary damages are inadequate to compensate for the loss
of First Amendment freedoms. Legend Night Club, 637 F.3d at 302. Considering the balance of
hardships, the deprivation of Rothamel’s First Amendment freedoms easily outweighs whatever
burden the injunction imposes on the County, which has represented that it would not enforce the
23
ordinance against Rothamel anyway. Finally, “upholding constitutional rights is in the public
interest.” Id. at 303. Each of the factors for issuing a permanent injunction is satisfied.
V. CONCLUSION
For the reasons stated herein, the Court will grant Plaintiff’s Motion for Summary
Judgment and issue a permanent injunction prohibiting the enforcement of the County’s
ordinance against Plaintiff’s display of the seal on his blog in the manner discussed in this
opinion. Defendant’s motion for summary judgment will be denied.
The Clerk of the Court is hereby directed to send a certified copy of this memorandum
opinion and the accompanying order to all counsel of record.
2nd
Entered this ________ day of September, 2011.
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