7th Circuit says town's prohibition on inflatable rats violated union's free speech rights

By Tara Mapes | Sep 22, 2016

CHICAGO – In an unusual opening statement in a ruling by the U.S. Seventh Circuit Court of Appeals, the court began with:

“Rats. This case is about rats. Giant, inflatable rats…Cats too—inflatable fat cats, wearing business suits and pinkie rings, strangling workers.”

To illustrate the focal point of the lawsuit, the court even shared photos of the giant inflatable animals in its decision - inflatable animals used by the Construction and General Laborer’s Local Union No. 330 to vividly demonstrate its discord with employers who purportedly refused to pay union-scale wages.

When the town of Grand Chute, Wis., ordered the union to remove the inflatables for violating a city law that prohibits private signs on public land, the union filed suit, alleging the town violated its First Amendment rights.

The union argued the town was selectively enforcing its ordinance to censor messages of which it did not approve, infringing on the union’s right to engage in free speech. The district court denied the union’s motion for a preliminary injunction and entered summary judgment for the town, finding its sign ordinance served the purpose of protecting community aesthetics and safety.

The union appealed the ruling, even though the construction project the union was demonstrating against had already ended. The Seventh Circuit agreed the town violated the union’s right to free speech and remanded the case back to the district court.

“The Seventh Circuit's decision is interesting but I don't think it is very significant, mainly because [it] questioned whether the case is 'justiciable;' whether the case is still a live active controversy," said David Hudson, ombudsman for the The First Amendment Center. "I would think on remand a good argument can be made that the case is not moot, because this case raises issues that are easily capable of repetition, which is a key exception to the mootness doctrine.”

Judge Richard A. Posner both concurred and dissented in the ruling.

He began his dissent by writing, “I’ll scandalize some readers, who think it improper for a judge to stray outside the official trial record, by sharing with them my experience with a roadside union rat.”

He recounted how when he would drive down a major highway he would see a giant rubber rat named Drape. He said it was the only noteworthy sight and it never distracted him from driving, which was one of the arguments the town made regarding the inflatables. He said he never heard of the rat causing mayhem, and as such did not give credence to the town’s argument that the inflatable pets were any more distracting than a billboard.

While he agreed the town was wrong, he disagreed the case should be remanded, writing, “…we should enter judgment for the union and not prolong the agony.”

Hudson found the dissent between the judges most interesting.

“Judge Posner and Judge (Frank) Easterbrook are two of the most significant and accomplished federal jurists in the country. It is always interesting to read their opinions,” Hudson said.

Hudson said he found it noteworthy that Easterbrook, “identifies a possible roadmap for a selective enforcement type claim and how that might play out,” adding that the case would be more significant if the district court decides the case is live, and then rules on it.

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