City moves to amend seal usage ordinance after ACLU criticism

Tuesday, January 8, 2019 - 6:40pm

City Council moved to amend an ordinance limiting the unauthorized use of Ann Arbor’s official seal at a meeting Monday.

City Council moved to amend an ordinance limiting the unauthorized use of Ann Arbor’s official seal at a meeting Monday. Buy this photo
File Photo/Daily

City Council moved to amend an ordinance limiting the unauthorized use of Ann Arbor’s official seal at a meeting Monday after the American Civil Liberties Union called restrictions requiring mayoral permission unconstitutional.

Mayor Christopher Taylor said the city attorney’s office worked to craft an ordinance to respond adequately to the ACLU’s concerns.

“This is an ordinance that complies with those objections,” Taylor said. “It’s our goal, of course, to avoid confusion in the suggestion of affiliation or sponsorship, but it is also our goal to make sure we comply with the First Amendment in all obligations, so I’m glad that this is moving forward and I think this is an effective change.”

In July, City Council passed a resolution banning unauthorized displays of the seal, with violations incurring possible fines of up to $10,000.

In November, Dan Korobkin, deputy legal director for ACLU of Michigan, and Gayle Rosen, co-chair of the Washtenaw County ACLU Lawyers Committee, sent a letter to the city criticizing the measure, saying it violated constitutional protections for freedom of speech and calling for Ann Arbor to repeal it immediately.

“The City Seal and Flag Ordinance is unconstitutional on its face,” they wrote. “Unlike commercial products, a city seal and flag do not enjoy trademark protection. As a content-based restriction on free speech, the ordinance is subject to strict scrutiny and cannot survive that rigorous test. And requiring the mayor’s permission to display the seal or flag is a classic unconstitutional prior restraint on speech.”

City Council enforced the ordinance in the case of Ann Arbor resident Ed Vielmetti, who was notified to cease and desist after using the city seal on an Ann Arbor page on localwiki.org about the seal itself. Vielmetti called the letters he and the parent organization of LocalWiki received “threatening.”

Vielmetti spoke at the meeting Monday, saying he appreciated City Council’s effort to narrow the prohibitions on using the seal.

“The letters, although they were not a ticket, were very clear threats of a $10,000 fine,” Vielmetti said. “So I thank all of you who voted for this amendment, and I will thank those of you who will change your vote next time.”  

Councilmembers Jack Eaton, D-Ward 4, Jeff Hayner, D-Ward 1, and Anne Bannister, D-Ward 1, voted against the amendment to the ordinance.

The changes to the ordinance strike the permitting provisions while specifically allowing Ann Arbor to obtain an injunction to stop “unlawful use of the flag and/or seal.” While debating the resolution, Hayner asked Matthew Rechtien, senior assistant city attorney, about a theoretical situation in which an elected official used the city seal on social media.

“If I was a councilperson, which I am, and I had some kind of social media account and I presented myself in front of the city seal and I said, ‘Vote no on this, vote yes on this, vote for this person, don’t vote for that person,’ would you consider that a violation of the council rules?” Hayner said. “Would you consider that using the city property?”

Rechtien refused to answer Hayner’s hypothetical, saying he would need all the facts before offering legal advice.

“I’m just not going to get into judging a vague hypothetical here on the record in a council meeting,” Rechtien said.

Councilmember Zach Ackerman, whose Twitter header was the city seal, said he thought Hayner’s question was in reference to him.

“I realized now my cover photo on Twitter is the seal of the City of Ann Arbor, and I think Councilmember Hayner may be alluding to that and I would just say if you take objection to that you’re more than welcome to just call me and I’ll change it if it makes you uncomfortable,” Ackerman said. “I haven’t once thought about it until this very moment.”

Councilmember Kathy Griswold, D-Ward 2, said she regretted that City Council had passed the original ordinance at all.

“The fact that we wasted staff resources to write this ordinance in the first place and we are now wasting staff resources to talk about whatever conversation we’re having tonight troubles me and I apologize,” Griswold said.