Seventh Circuit Affirms that a Union's Use of Inflatable Rat Is Protected Free Speech

Nathan Eisenberg

In a victory for unions engaging in picketing and informational campaigns, the United States Court of Appeals for the Seventh Circuit found that a union has a First Amendment right to display an inflatable rat balloon as part of an area standards campaign and that a municipality may potentially infringe on that right by forcing the union to remove the rat. The decision in Laborers Local Union No. 330 v. Town of Grand Chute, overturned a lower court decision which dismissed the union’s claims. Attorney Nathan Eisenberg from The Previant Law Firm, S.C. represented the union in the case.

The lawsuit challenged a demand by the Town of Grand Chute that Laborers’ Local 330 remove an inflatable rat that was being used as part of an area standards campaign against a masonry contractor. The rat was located on a public right-of-way adjacent to the construction project where the contractor was working. Grand Chute demanded the rat be removed after a complaint by the property owner. After the complaint, for the first time, the Town alleged that the rat violated a local sign ordinance. The Union took the matter to Federal Court claiming a violation of the Union’s rights under the First Amendment to engage in speech on public property. The Union pointed out that Grand Chute did not enforce the sign ordinance against other signs or against the rat before the complaint. In essence, the Town was targeting the union’s First Amendment speech. The District Court dismissed the complaint, finding that the sign ordinance had the purpose of protecting community aesthetics and safety.

The United States Court of Appeals for the Seventh Circuit overturned the District Court’s decision, returned the case back to the District Court, and provided extensive guidelines for reviewing the case on remand. In a unique opinion, including large photographs of the inflatable rat, the court determined that the District Court had not adequately addressed other instances where other signs violated the ordinance but where no enforcement had been taken. The court found that incomplete enforcement of the ordinance “is not an adequate answer to a contention that unit of government has allowed some speech and stifled other speech, choosing which ideas can be conveyed.” However, because the rat was taken down and the specific labor dispute triggering the lawsuit had been resolved, the majority found that the case may be moot and remanded the case to the District Court.

Judge Richard Posner, in a separate opinion, strongly objected to sending the case back to the District Court. Wrote Judge Posner:

For an ordinance to be allowed to curtail a constitutional right, it must be grounded in a legitimate public concern… The town cites two such concerns: aesthetics and safety. Both are spurious as applied to the union rat…. No citizen of Grand Chute has…expressed revulsion at the rat. There is no evidence of rat-caused congestion or rat-induced traffic accidents in Grand Chute (or anywhere else, for that matter.)

Pointing out that the Town “barely tries” to enforce its sign ordinance and finding that “enforcement is sporadic,” he found that there was no “…evidence that the ordinance serves a governmental purpose that would justify a curtailment of the union’s First Amendment Rights (indeed no legitimate interests at all, asunion busting is not such an interest.)” (emphasis added). In his opinion, the case did not need to be remanded. Instead, he would have ruled in favor of the union.