The Commonwealth of Virginia's Ultimate Blog

Sunday, April 24, 2005

When is a seal not a seal?

When it's on a flag. Confused? Read on.

When we first put up this site, we wanted to express our connection to the Commonwealth. We picked two emblems with high recognition - the great seal of Virginia and a map of Virginia. In addition, the Great Seal is a visual depiction of our name.

The result was our old masthead.

It's a masthead that many of you have come to love. You turn to it each morning, hoping for some yummy SST goodness. It's freedom, democracy, apple pie...but I digress.

Last month, we received a very nice email from a gentleman in the Secretary of the Commonwealth's office.

It has been brought to the attention of this office that the Seal of the Commonwealth is being displayed on the website and that this is the e-mail address for the person(s) responsible for that website.

This office proudly encourages free speech. The persons responsible for this website appear to be conscientious citizens who would not knowingly violate a law of our Commonwealth. For that reason, I want to advise you of Section 7.1-31.1 of the Code of Virginia. This provides that, "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." This section goes further to set criminal penalties for violation.

I bring this law to your attention with the assumption that you were not previously aware of it and that you will take appropriate and timely action to discontinue using the Seal of the Commonwealth as part of your website.

Thank you very much for your cooperation in complying with the law of our Commonwealth.

Here are those "criminal penalties":

...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 thirty days or both.
I was floored. I certainly never meant to test § 7.1-31.1. In fact, the email notice summed up my intentions perfectly: "The persons responsible for this website appear to be conscientious citizens who would not knowingly violate a law of our Commonwealth."

I started thinking about another masthead that would express my love for the Commonwealth, and at the same time encompass our blog's name.

One morning as I waited in line at the Wachovia ATM, I had an epiphany. There, right before my very eyes, was a nongovermental display of the Great Seal. It was centered on a deep blue rectangular field, and surrounded by a white border. It was flapping gently beneath Old Glory - The Flag of the Commonwealth.

Perplexed, I decided to do more research. Was every bank and private citizen in Virginia in violation of § 7.1-31.1? I learned that the Flag of the Commonwealth was mentioned throughout the Code of Virginia.

There was, however, no general authorization for private citizens, banks, gas stations, etc., to fly the flag. In other words, their display of the Great Seal was not "specifically authorized by law."

I wrote back to the very nice gentleman in the Secretary of the Commonwealth's office and posed one question:

It would appear that every person who displays the Flag of the Commonwealth is in violation of § 7.1-31.1. Is this your understanding?
I received a reply in short order:
This office has maintained a distinction between the use of the Seal, which is specifically restricted by law, and the use of the flag of Virginia, which has no statutory restriction and for which this office has no jurisdiction. If anyone chooses to use the flag, on a website for instance, and so long as it looks like a flag rather than looking like the seal centered on a blue rectangle, there is no statutory concern.

Eureka! A new, better, more improved masthead was born!

This was the rough draft, although Zach and Harry wanted to make it the permanent masthead. The final version now adorns this very page.

If you were looking to be entertained, you can stop now. If you want to do policy, read on.

  1. What, in this day and age, are we doing with a keeper of the Seal? Last time I checked, Mark Warner wasn't wearing a signet ring or carrying beeswax. It seems just a little anachronistic.
  2. Under federal copyright law, states must generally assert some right of protection that extends beyond the provisions of 17 USC §106. This is called the extra element test. Here, the Commonwealth only regulates the duplication and display of the state seal - something they could do with federal copyright. See, e.g., National Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 433 (8th Cir.), cert. denied, 510 U.S. 861 (1993); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir. 1990); Acorn Structures, Inc. v. Swantz, 846 F.2d 923, 926 (4th Cir. 1988). The Commonwealth's law is thus preempted by federal statute
  3. §2.2-122 of the Code of Virginia allows the Secretary of the Commonwealth to license the Great Seal for commercial purposes. This licensing is apparently not available to non-profit or speech oriented enterprises like Sic Semper Tyrannis. To the extent that this is the case, the Commonwealth is engaging in both content and viewpoint discrimination. On the other hand, if the Commonwealth is recognizing its right to regulate commercial speech through licensing, it is implicitly recognizing its inability to regulate non-commercial speech by restricting use of the seal.
  4. Doesn't the Commonwealth's decision not to enforce § 7.1-31.1 against displays of the flag raise all sorts of questions about arbitrary enforcement? Does the Commonwealth's assertion of § 7.1-31.1 provide fair warning to users of the seal, when it's abundantly clear that they assert no intellectual property rights over the flag? Is there some limiting construction (of which I am not aware) that would obviate the Constitutional problem of overbreadth? Or is this just void for vagueness?
  5. Does any member of the GA who reads this blog want to take a crack at cleaning this language up?
  6. A brief perusal of Google images indicates dozens of non-governmental uses of the seal, including one by a Democratic candidate for the House. At a time when the citizens of the Commonwealth have been asked to shoulder the largest tax increase in Virginia history, is this the kind of thing we want to spend our time on?


Anonymous Anonymous said...

Please cut off Northern Virginia again.

1:59 AM

Blogger Jason Kenney said...

I'm with Zach and Harry, shoulda kept the rough draft.

For what it's worth, I think the new masthead's better than what you had.

8:39 AM

Blogger Norman said...

Bravo, guys...glad to see you lay this out for all to see.

My question still remains from your first word on this matter: who in the Secretary of the Commonwealth's office has the time to poke around blogs looking for offenses against the State Code?

10:05 AM

Blogger diadem said...

Thanks for laying out your research. I, personally, appreicated the full explanation. As strange as it was to get your "violation" notice, or whatever the email was, at least we all learned something new about the laws of our commonwealth. I'm glad you went the extra mile to figure out what could be done, rather than pasting a generic header.

I like your choice. The rough draft was unique too, but I think the final looks great.

11:07 AM

Blogger Steven said...

Oh, Norm and the 'Pubs at SST!

The only time I've heard mention of a state seal violation was back in 2003. The DPVA warned candidates (such as the Blue Dog) not to use the state seal on their campaign web pages or face possible state penalties. In addition, Democrat Lowell Fulk used the issue against Delegate Glenn Wealtherholtz concerning his campaign literature and use of the state seal.

Read more about it:
Dist. 26 Race Heats Up, Weatherholtz Accuses Fulk Of 'Pettiness'
"Last week, the campaign for Democratic candidate Lowell Fulk turned over papers to the Daily News-Record, alleging the documents showed that Fulk’s incumbent opponent, Del. Glenn Weatherholtz, misused the state seal on campaign literature."

~ the blue dog

12:22 PM

Anonymous Clayton Delaney said...

Is this all you have to do with your time.

1:46 PM

Blogger John K. said...

Finally...the northern part of the Commonwealth is (literally) "in the picture."

4:43 PM

Blogger Becky Dale said...

Here's some interesting material on the seal. First Why Virginia is a Commonwealth:

Here's a history of the seal written in 1894:
The Seal of Virginia. Lyon G. Tyler. William and Mary College Quarterly Historical Magazine, Vol 3, No. 2.(Oct., 1894), pp. 81-96.

Take a look at these depictions of the seal:
Virginia Coal and Iron Company stock certificate 1920's.

Album of VA, illustration by Edward Beyer.

Here's a question someone might ask: Has Virginia registered the seal with the Copyright Office? I suspect that Virginia is not claiming copyright on the seal but is instead regulating use of it by state statute.

Using the symbol as depicted on the flag instead of by itself does seem to be the way for people to use it without violating state law. It's obvious that it's a flag, not the seal itself being impressed on the document, or in this case, your website.

6:47 PM

Anonymous Anonymous said...

You guys are Virginia personified! You represent all of us. Great job!

1:39 AM

Anonymous audreyo said... I can't believe that making the seal/blue background undulatingly 'flaggy' is all it takes. Yeesh. :)

7:31 PM


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