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  • WisBar News
    February 22, 2019

    Ordinance Banning Scabby the Rat Display Did Not Violate Union’s Free Speech Rights

    Joe Forward

    Scabby the Rat

    Scabby the Rat is a labor union symbol used around the country when labor disputes arise. Here is Scabby the Rat in in New York City.

    Feb. 22, 2019 – A Wisconsin town’s sign ordinance did not violate a local union’s free speech rights, even though the ordinance prohibited the union from displaying its 12-foot inflatable rat, Scabby the Rat, to symbolize its protest against a local business.

    The union erected Scabby the Rat to protest a local car dealership in the Town of Grand Chute, alleging the dealership was paying nonstandard, lower wages to masons on a construction project. The union placed Scabby the Rat in a right-of-way on a major thoroughfare near the dealership, drawing attention to protesting picketers nearby.

    Ultimately, law enforcement ordered the union to stop displaying Scabby the Rat under a local ordinance that prohibited signs on public ways that were “structures.” Inflatable signs, which are tethered to the ground by stakes, were “structures,” police said.

    The union filed a lawsuit, arguing the city violated the union’s free speech rights on the basis of content discrimination, allowing some signage displays and not others.

    In the first round of litigation, the U.S. Court of Appeals for the Seventh Circuit remanded the case in 2016 to determine whether the case was moot – the construction project had ended – or if the dispute between the parties was likely to arise again.

    On remand, the U.S. District Court for the Eastern District of Wisconsin ruled that the case was not moot because the union sought damages for protesting costs.

    The district court also ruled that the ordinance did not violate the union’s free speech rights because it was content neutral – it applied to all sign structures in public ways – and rejected the union’s argument that the city was selectively enforcing the ordinance.

    The union appealed for the second time. In Construction and General Laborers’ Union No. 330 et al. v. Town of Grand Chute, No. 18-1739 (Feb. 14, 2019), a three-judge panel for the Seventh Circuit Court of Appeals affirmed the district court.

    That is, the panel agreed the town’s sign ordinance “was narrowly tailored to meet its stated purpose – the banning of anything on the public right-of-way that might obstruct vision or distract passing drivers,” and the city was not selectively enforcing it.

    The union had also alleged that a 2015 amendment to the sign ordinance, which further restricts inflatables, may prevent the union from locating Scabby the Rat in certain locations in the future, while decorative inflatables like Santa Claus are permitted.

    A police officer had testified that there was an unwritten holiday decoration exception to the ordinance. But the appeals court panel said that issue was not ripe for a decision, and the district court should have refrained from deciding the issue at this stage.

    “The Union’s allegations about protests it might have conducted are too speculative to create a concrete dispute,” wrote Chief Judge Diane Wood.

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