The American Civil Liberties Union of Michigan is fighting back against a new city ordinance that bans any unauthorized displays of the city’s seal or flag.
In a three-page letter to the city dated Nov. 1, Dan Korobkin, deputy legal director for the ACLU’s Michigan chapter, and Gayle Rosen, co-chair of the Washtenaw County ACLU Lawyers Committee, called the ordinance unconstitutional on the grounds of free speech.
“We strongly urge the city to repeal the ordinance, and in the meantime the city attorney’s office should disclaim any intent to enforce it,” they wrote. “Such a restriction is clearly unconstitutional.”
Under the ordinance, which City Council passed during its July 2 meeting, any displays “on any written or printed materials that are not official city publications,” are forbidden without explicit permission from the mayor. Violations of the ordinance are punishable by fines of up to $10,000.
In a memo to the council supporting the passage of the ordinance, Matthew Rechtien, senior assistant city attorney, explained the reasoning behind it. He claimed the unauthorized use of these symbols led to documents originating from third parties being misconstrued as being from the city.
“The city’s flag and seal are symbols of, and have value to, the city,” Rechtien wrote. “Vendors and potential vendors to the city, and other third-parties, however, use these symbols for things like proposals or bids to the city, usually without any city permission.”
The ordinance was enforced shortly after it was passed when Ann Arbor resident Ed Vielmetti was sent a “cease and desist” notice when he used the city seal in a localwiki.org entry specifically about the seal.
The ACLU is arguing the ordinance infringes on free speech. While Vielmetti has since been given permission from the mayor to use the seal, the ACLU still sees the ordinance as an issue.
“No one else who wishes to display the city’s seal or flag should have to risk a threatening letter from a public official, or ask the mayor’s permission, before engaging in speech or expression that is clearly protected by the First Amendment,” the ACLU letter states, referring to Vielmetti’s situation.
The letter was addressed to Ann Arbor Mayor Christopher Taylor and City Attorney Stephen Postema, and both have responded saying they are going to look at the ordinance and make sure they are within their rights.
“Certainly I have all the respect in the world for the outstanding work performed by the ACLU,” Taylor said. “After the ACLU’s letter, we are going to take a very close look at what we have and make sure that we’ve got it right.”
In the letter, Korobkin and Rosen communicate they do not think any ordinance like the one passed in July would pass a test of constitutionality.
“As a content-based restriction on speech, the ordinance is subject to strict scrutiny and cannot survive that rigorous test,” the letter states. “And requiring the mayor’s permission to display the seal or flag is a classic unconstitutional prior restraint on speech.”
According to Postema, the city plans to discuss the ordinance with the council in December, and strike a balance between protecting the city’s interests and addressing the concerns of the ACLU.