Blogger sues Fluvanna over seal

The owner of The Fluco Blog, a Fluvanna County-based news site, has filed a lawsuit over an ordinance limiting the use of the official Fluvanna County seal.

Bryan Rothamel is accusing the county of violating the First and 14th Amendments by adopting the ordinance, which allows use of the seal only with permission from the Board of Supervisors. Under the county code, a violation of the ordinance is a Class 1 misdemeanor, which carries a maximum sentence of 12 months in jail and/or a fine of up to $2,500.

Rothamel, 23, is the senior writer and copy editor of flucoblog.com. He said he has posted the seal to accompany stories about local government and scanned news releases issued by the county that included the seal image.

“I used the seal just like news organizations have used it across the country,” Rothamel said.

The complaint was filed Monday in Charlottesville’s federal court by attorneys for The Rutherford Institute, a local civil liberties organization. Frederick W. Payne, the county’s attorney, said Monday afternoon that he wasn’t aware of the lawsuit. William P. “Jay” Scudder, the county administrator, didn’t return a call seeking comment for this story.

The impetus for the ordinance may stem from a July e-mail from Payne to the then-interim county administrator. The e-mail, which is attached to the ordinance motion on Fluvanna’s website, said a blogger was using the seal on the site to “advertise his product.”

“When apprised of this, the board directed that we research the question of the county’s interest in the seal and its right to control the seal’s use,” the e-mail said.

The motion for the ordinance was adopted 4-1 after a Sept. 15 public hearing during which Rothamel asked about fair use of the seal during news reporting, according to the meeting minutes. Shaun V. Kenney, the vice chairman of the board, voted against the ordinance. He said that he thinks the ordinance was a “remedial action” against the blogger for writing something that a supervisor didn’t agree with .

“This seems like a simple First Amendment, slam dunk, common sense situation,” Kenney said. “I’m still appalled, with all of the other issues facing us in Fluvanna County, that somehow we chose to focus on this.”

Rothamel said he didn’t receive a warning about the use of the seal until he saw a Board of Supervisors agenda mentioning the ordinance. The blogger said he has since deleted the seal from the blog for fear of punishment.

The Fluco Blog isn’t the only news organization that has used the Fluvanna seal in its reporting. Carlos Santos, editor of The Fluvanna Review, said the weekly newspaper has used the Fluvanna seal to illustrate news stories about the board and to accompany county advertisements. A story about a Fluvanna supervisor vacancy published Monday on NBC29’s site included a picture of the seal.

John W. Whitehead, founder of The Rutherford Institute, a civil liberties group, said The Fluco Blog has been critical of the county, but the First Amendment allows for both criticisms and praise of government.

“Criminalizing what you say and how you say it is unconstitutional,” Whitehead said. “… I think if they had gotten better advice, they wouldn’t have done this.”

Steven D. Rosenfield, an attorney representing Rothamel, said there are statutes preventing the seals of Virginia and United States seal from being used for making money or fraud.

“This was drafted without any hint that it was modeled after either statute,” Rosenfield said.

Rosenfield said a letter was sent six weeks ago to Payne to see if county officials wanted to talk about the matter, but no response was received. Kenney said the board received a copy of a letter from an attorney, but there was no discussion with the board and he doesn’t know whether Payne responded.

In the suit, Rothamel is seeking declaratory judgments that the ordinance is unconstitutional and that his use of the seal is protected speech. He also is seeking unspecified damages and attorney’s fees.