Fluvanna County, Virginia has an ordinance (enacted last year) providing that “The seal of Fluvanna County shall be deemed the property of the County; and no persons shall exhibit, display, or in any manner utilize the seal or any facsimile or representation of the seal of Fluvanna County for nongovernmental purposes unless such use is specifically authorized by law.” Violators face a fine of up to $100, and up to 30 days in jail. A local blogger, Bryan Rothamel (Fluco Blog), uses the seal often in stories that refer to county government; indeed, it appears that his use of the seal is what triggered the ordinance. Rothamel sued the county, claiming that the seal display ban violates the First Amendment. Rothamel v. Fluvanna County (W.D. Va. Sept. 2, 2011) held the ordinance unconstitutional (in my view, correctly) as to Rothamel’s use of the seal:
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.” 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 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). FN10 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.
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[, e.g.,] 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). 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 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.” 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). 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.
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. A government entity “is entitled to say what it wishes,” and to select the views it wants to express. 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 FirstAmendment. 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. 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. 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. The Court emphasized that cities take some care in determining which monuments among those offered for donation to select for permanent display, as the character of city parks plays an important role in defining the identity that a city projects to others.
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. Having found the ordinance unconstitutional as applied to Plaintiff’s employment of the seal, I need not consider the ordinance’s facial sufficiency.