Board of Selectmen Meeting, March 20, 2023
Board enacts illegal restrictions on political speech in reaction to GOP mailer. Planning Board’s unfair treatment of applicants. Links on the Town website to be banned.
Illegal Restriction Enacted on Political Speech
Interim Town Administrator John Scruton informed the board that the printer of the postcard sent out by the Nottingham GOP Committee sent the printing bill to the town of Nottingham instead of the town’s Republican party. Scruton claimed that the printer sent the bill to the town instead of the GOP Committee because the mailer included the seal of the town of Nottingham.
Nottingham GOP Committee mailer displaying the town seal.
Because of this mistake made by the printer, he proposed that the Board of Selectmen should prohibit the use of the town seal by anyone except the town itself. He further proposed that the town should apply for a trademark on the seal to increase the town’s ability to legally protect the seal from use by other parties.
I was in the audience for this meeting. I pointed out that the seal was routinely used in journalism about the town, such as in the Forum, and that by enacting the Interim Town Administrator’s proposal the town would be prohibiting the use of the seal by journalists.
Example of journalistic use of the town seal, from the Forum.
Interim Town Administrator John Scruton’s proposal to forbid anyone but the government to display the town seal passed unanimously. Voting for: Tony Dumas, Donna Danis, Ben Bartlet, and John Morin. Tyler Eaton was not present. (Discussion starts at 0:23:25 on the video).
COMMENTARY:
The Board of Selectmen had better consult the town’s attorney, as it seems clear to me from just a little bit of research that the board has just voted for the town to illegally interfere with protected political speech. If the town ever tried to enforce this decision the Board of Selectmen made, I think the town should expect to get sued.
Here’s what I found in just a few minutes of research.
First, trademark law specifically bars municipalities from trademarking their seals.
But more important than that, the First Amendment permits one to use the seal of a government agency. The government can no more prohibit people from displaying its seals for expressive purposes than it can prohibit people from displaying its flag.
In particular, journalistic use is legally protected from the kinds of usage bans enacted by the town. For example, in the case of Renna v. County of Union the ruling was:
(1) Union County has no trademark rights with respect to its official Seal;
(2) Renna's display of the seal in connection with her television show does not constitute trademark infringement; and
(3) Union County deprived Renna of her First Amendment rights when it threatened to enforce trademark laws against her.
Consider that the First Amendment prohibits a State from criminalizing the desecration of the United States flag as a form of political protest. ... Should a county, by means of an artful extension of trademark law, be permitted to quash political expression that uses its Seal? I think such an extension would be both unwarranted and Constitutionally risky.
Similarly, in Rothamel v. Fluvanna County the county tried to prohibit the use of its seal in blog posts, federal court created a permanent injunction against the county, saying:
The County takes the position that the showing of the seal by private citizens is not a form of expression at all; rather, the seal is government property, like a government vehicle or other form of personal property. ... While the County is correct that Rothamel does not have the right to take possession of a physical seal owned by the County, the County cannot control all privately-owned images or representations of the seal simply by declaring an interest in managing its own property. The First Amendment requires a more specific and substantial interest in restricting speech than the broad desire to safeguard government property.
Not only do private citizens and journalists have protected First Amendment rights to use the town seal, so too do political parties and candidates running for office. Only if the Nottingham GOP Committee had used the town seal to imply that the town endorsed its slate of candidates - which it did not - would the town have legal grounds against the GOP Committee.
Isn’t it ironic that a town that displays its motto, “defender of liberty,” on its town seal should declare that its citizens are not at liberty to display that seal without their permission?
Seal of the Town of Nottingham displaying the town’s motto “Defender of Liberty.”
Unjust Treatment by the Planning Board
Selectman John Morin reported to the Board of Selectmen that he attended the March 8 meeting of the Planning Board and was concerned about the treatment of one of the cases on the Planning Board’s agenda was treated unfairly in the sense that the board failed to apply to it the due diligence that it has in the past applied to similar cases. The case in question involved a request for a Conventional Site Plan Review so that the business would be able to not only farm the land, but also host 8 – 12 events (brunches, dinners, and/or educational workshops) per year. This case was reviewed at the beginning of the meeting. See the video of the Planning Board meeting. John Morin expressed his concerns at 0:30:40 in the video.
Morin complained that the Planning Board failed to consider in its due diligence the impact of these events with regard to parking, access for emergency vehicles, and on septic - issues that the Planning Board has made other petitioners address. Morin emphasized that he was not objecting to the permit itself and he was favorably disposed to the petitioners’ request for the permit. What concerned him was the Planning Board’s failure to apply due diligence in this case and this failure seemed not only unfair to other similar applicants who were made to do far more work to get their permits, but also that problems may arise because of the Planning Board’s failure to do proper due diligence. (Morin’s report starts at 0:02:20 on the video).
Banning Links on the Town Website
Interim Town Administrator John Scruton proposed that the town enact a policy of prohibiting the town’s website from linking to any website that was not a government entity. The board agreed with the proposal and asked for a policy to be drafted for their review.
COMMENTARY:
Such a policy would prohibit the town from linking to entities it has linked to in the past such as the Red Cross (example), The Forum (example), a town baseball club (example), military re-enactment groups (example), musicians playing at town concerts (example), and requests for volunteers (example). What could possibly be the benefit of such a prohibition?
Other Issues
Interim Town Administrator John Scruton said that he thought that the town must find a new location for its recycling center and build a new facility because the present facility is out of date and there’s no room to expand it in its present location.
The animal control officer has resigned. The town is working on a replacement.
Three of the town’s trucks had to go to the repair shop after the last major snowstorm. One needs a new motor. The current wait for a motor is 4 months.
Watch the video: