Rothamel v. Fluvanna Cnty.
| Citation | 810 F.Supp.2d 771 |
| Decision Date | 02 September 2011 |
| Docket Number | Case No. 3:11–cv–00002. |
| Parties | Bryan ROTHAMEL, Plaintiff, v. FLUVANNA COUNTY, VIRGINIA, Defendant.Commonwealth of Virginia, Amicus Supporting Defendant. |
| Court | U.S. District Court — Western District of Virginia |
OPINION TEXT STARTS HERE
Jeffrey Edward Fogel, Jeffrey E. Fogel Law Office, Steven David Rosenfield, Rosenfield & Wayland, Charlottesville, VA, for Plaintiff.
William W. Tanner, Payne & Hodous LLP, Charlottesville, VA, for Defendant.
Christina Nicole Gilliam, Farnaz Farkish, Stephen Richard McCullough, Office of the Attorney General, Richmond, VA, for 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.
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 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 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 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.
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.
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 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, 106 S.Ct. 2548. When considering summary judgment motions, courts must view the facts in the light most favorable to the party...
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Renna v. Cnty. of Union
...provision does explicitly incorporate the concept of “distinctiveness.”15 At oral argument, both sides cited Rothamel v. Fluvanna County, 810 F.Supp.2d 771 (W.D.Va.2011). I do not find Rothamel particularly persuasive either way, because it dealt with a different set of issues. There, the c......
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Renna v. Cnty. of Union
...provision does explicidy incorporate the concept of "distinctiveness." 15. At oral argument, both sides cited Rothamel v. Fluvanna County, 810 F. Supp. 2d 771 (W.D. Va. 2011). I do not find Rothamel particularly persuasive either way, because it dealt with a different set of issues. There, ......