Aug. 23, 2016 – A labor union that displayed a large inflatable rat and a fat cat to voice displeasure with an employer in the Wisconsin town of Grand Chute must go back to square one in its free speech case.
A three-judge panel at the U.S. Court of Appeals for the Seventh Circuit ruled (2-1) that the case is moot unless, on remand to the district court, the union can show the conflict between the union's inflatable protest strategy and a town ordinance is likely to arise again.
But the majority suggested that the town would win on the merits if the town is not discriminating against certain viewpoints and has not undercut its own ordinance with selective enforcement.
Judge Richard Posner dissented, arguing that the case should not be remanded and concluding that the union’s free speech rights were violated.
Inflatable Rat and Fat Cat
The case began when a labor union erected the inflatables in highway medians, using grounded stakes to tie them down. The union was protesting worker wages on a construction project in the Town of Grand Chute. The fat cat, for instance, is strangling an inflatable worker while wearing a pinky ring.
Grand Chute, caught in the middle of this labor dispute, cited a town ordinance in ordering that the union stop erecting the inflatables. The ordinance forbids private “signs” on public ways that are “structures.” The town argued the blow-ups were prohibited structures.
The unions removed them and sued, arguing the town violated its free speech rights under the First Amendment to the U.S. Constitution. The U.S. District Court for the Eastern District of Wisconsin, Judge William Griesbach, ultimately ruled for the town on summary judgment.
In Construction and General Laborers’ Local No. 330 v. Town of Grand Chute, No. 12-1932 (Aug. 19, 2016), a three-judge panel for the Seventh Circuit Appeals Court ruled the case seems moot because the construction project the union workers were protesting ended and the union never asked for damages.
“[F]or a case to remain live because it is capable of repetition, there must be ‘a reasonable expectation that the same complaining party would be subjected to the same action again,’” wrote Judge Frank Easterbrook for the 2-1 majority. “The record does not contain any information about this likelihood.”
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The majority's opinion, which included photos of the inflatables, also noted that the town amended its ordinance while the case was pending, which could affect proper disposition of a live controversy, if one does exist.
The majority said the district court should take a second look to decide whether this case satisfies the “'capable of repetition yet evading review’ proviso to the mootness doctrine.” The court should also review the current ordinance, the panel noted, to see if it changes the outcome.
“Although we cannot resolve the merits while the presence of a justiciable controversy is in doubt, we can say a few words about other issues that the district court needs to consider if the controversy remains live,” Judge Easterbrook wrote.
The majority noted that cities can ban private signs on public ways, including signs expressing symbolic speech, so long as it does not discriminate against disfavored viewpoints. But the town could be in trouble if it is selectively enforcing the ordinance that applies in the case.
“If the ordinance in operation discriminates according to the content of speech, then only a compelling justification could save it, and the town has not argued that it has the sort of justification that would authorize content discrimination,” Easterbrook wrote.
Judge Posner Concurs, Dissents
Judge Richard Posner agreed that the district court’s decision in favor of the town should be reversed, but he also concluded that a remand was not necessary.
“The balance of evidence is clear enough to justify our deciding that the union’s constitutional right of free speech was violated,” wrote Judge Posner, noting a remand would cause significant delay, burden the court system, and be costly to the parties.
“Appellate courts should try to make the first appeal in a case the last and order a remand only when the need for further proceedings at the trial level is imperative.”
The case is not moot, Posner explained, because the union noted that it would probably use the rat again in a future protest, and the town indicated that its response would be the same. Thus, Posner said the panel should decide the merits, in favor of the union.
Large inflated rubber rats, often used by unions in symbolic protest, are merely large picket signs, Posner noted, which are protected speech.
“For an ordinance to be allowed to curtail a constitutional right, it must be grounded in a legitimate public concern,” Judge Posner wrote.
The town argued that prohibiting the inflatable characters was justified by the town’s concerns with aesthetics and safety. But Posner quickly rejected those arguments.
“[G]overnment cannot be allowed to suppress the visual equivalent of political speech without a more substantial aesthetic complaint,” Posner noted.
Further, the town presented no evidence that the inflatables caused traffic congestion or accidents. “And that is no surprise,” Judge Posner continued. “All sorts of what might be considered ‘attractive nuisances’ line the streets and highways of America.”
Posner, known as a wordsmith, talked of his own experience with an inflatable union rat that he encountered while driving to work in Chicago, and included photos.
“Every time I drove past the rat I glanced at it, as it was the only noteworthy sight on my route,” Judge Posner wrote. “This glance never caused me to swerve, crash, crouch in my seat, avert my eyes, hit a pedestrian, or cause other mayhem. Nor did I ever observe an accident, even a swerve, in the vicinity of the rat.”
He noted that the Chicago union rat was three feet from a major Chicago street, while the Grand Chute union rate was 70 feet off the highway.
“We should reverse, direct the district court to enter judgment in favor of the union, and be done with this case,” Judge Posner concluded.