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Ordinance banning ‘Scabby the Rat’ balloon didn’t violate First Amendment

By Lorene D. Park, J.D.

A 2014 town sign ordinance that had the effect of banning a giant inflatable rat used for symbolic purposes during union protests did not discriminate based on content in violation of the First Amendment.

The Seventh Circuit found no reason to question a district court’s findings that a town’s code enforcement officer, who required a union to remove a 12-foot rat balloon from a public right of way, was discriminating based on the content of speech protected by the First Amendment. The record showed that he investigated other signs under the 2014 ordinance and took action each time he found a violation. The court therefore affirmed the judgment that the 2014 ordinance was content neutral, that it was narrowly tailored to its purpose (banning signs that obstruct vision or distract drivers), and that the union had alternate means of communicating its message while protesting wage rates. The appeals court vacated the portion of the judgment addressing a 2015 ordinance because there was no ripe controversy under that version of the law (Construction and General Laborers’ Union No. 330 v. Town of Grand Chute, February 14, 2019, Wood, D.).

Scabby balloons. Scabby the Rat, explained the appeals court, a familiar sight in certain regions when a dispute breaks out between a union and an employer, is notable for his symbolic meaning and his size—he is a giant, inflatable balloon, available in sizes from six to 25 feet tall.

Picketing over wage dispute. Scabby made his appearance in this case after Local 330 of the Construction and General Laborers’ Union learned a masonry company working at a Toyota dealer in Grand Chute was not paying area standard wages and benefits. The union decided to engage in informational picketing at the site and to set up Scabby in the median directly across from the dealer, along the frontage road for a major local thoroughfare. Union members installed a 12-foot version of Scabby by tethering the balloon to stakes in the ground.

Ordered to take down the balloon. The protest went smoothly the first day, but on the second day, the town’s code enforcement officer went to the site and told the local’s president that the union had to deflate Scabby because the rat violated Section 535-108 of the town’s sign ordinance. The local’s president was surprised because he had discussed the plans with the police a few days earlier, but ultimately the union removed Scabby.

Lawsuit. Filing suit in district court, the union claimed the 2014 ordinance violated the First Amendment because it distinguished among signs based on content. The lower court refused to grant a preliminary injunction and later granted summary judgment for the town.

In a prior appeal, the Seventh Circuit concluded that, before it could reach the merits, the lower court needed to address whether the controversy had been mooted by the completion of the construction project that prompted the protest. The appeals court had also noted that the town amended the code in 2015 and had replaced the 2014 version of the ordinance being challenged.

On remand, the district court held that the case was not moot because it was undisputed the union was seeking damages based on the fact that it had been forced to pay members to assist in the area-standards picketing and to draw greater resources from its organizing affiliate to staff the protest. The court noted, however, that the likelihood of recurrence theory was not available because of the amendment to the ordinance.

On the merits, the lower court held that the town did not discriminate against the union in violation of the First Amendment when it banned Scabby under its 2014 ordinance, and that the 2015 ordinance passed constitutional muster as well. This appeal followed.

2014 ordinance didn’t violate First Amendment. Affirming in part, the Seventh Circuit noted that it can uphold a law that restricts even protected speech in a public forum if the restriction is content neutral, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative ways to communicate the desired message. Even a neutral ordinance can violate the First Amendment if it is enforced selectively.

Here, there was no doubt the union’s use of Scabby to protest employer practices was a protected form of expression under the First Amendment. And though the union claimed that the 2014 ordinance was selectively enforced, the lower court’s findings of fact did not indicate actual favoritism by the enforcement officer or indicate so much discretion that discriminatory enforcement was inevitable.

The union took pictures of other alleged violations around town, but the enforcement officer had investigated each one and had taken action, where he found a violation, to have the sign removed. He admitted that he may not have ferreted out every noncompliant sign on a public right-of-way, but he testified that he had never seen a violation and failed to enforce the ordinance against it.

Based on this evidence, the lower court held and the appeals court affirmed that the 2014 ordinance was content neutral, was narrowly tailored to meet the stated purpose of banning anything that might obstruct vision or distract drivers on a public rights-of-way, and the union had alternative means of communicating its message.

No ripe dispute over 2015 ordinance. Vacating the portion of the judgment addressing the 2015 ordinance, which differed in several ways from the 2014 ordinance, the appeals court held that it did not present a ripe Article III case or controversy at this point. While the union claimed that, had it not been for the 2015 law, it would have used Scabby again but refrained from doing so, allegations about protests it might have conducted were too speculative to create a concrete dispute. Thus, the district court should not have addressed the 2015 ordinance at all.