Appeals panel: Wisconsin town's ban on inflatable "Scabby the Rat" didn't violate First Amendment

By Scott Holland | Feb 20, 2019

A federal appeals court says a Wisconsin town didn't violate the First Amendment when it barred a union from protesting with a giant inflatable rat.

Construction and General Laborers’ Union No. 330 sued the town of Grand Chute when it stopped the union from inflating a 12-foot balloon known as "Scabby the Rat" to enhance a March 2014 protest outside aToyota dealership, where it planned to picket a masonry company that allegedly wasn't paying employees a standard salary and benefits.

The union said the town’s ordinance violated the First Amendment by distinguishing allowable signs on the basis of content. After a district judge granted summary judgment in favor of the town, the union appealed. 

The U.S. Seventh Circuit Court of Appeals deferred, saying completion of the project might have mooted the dispute. The town amended its sign ordinance in 2015, and with the case back in district court the union challenged both versions of the town law.

U.S. District Judge William Griesbach again found the 2014 ordinance didn’t violate the First Amendment, prompting the union’s appeal. Seventh CIrcuit judges Diane Wood, Frank Easterbrook and Michael Brennan heard arguments Sept. 24, 2018. Wood wrote the opinion, which was issued Feb. 14.

The panel dismissed the dispute over the 2015 ordinance without prejudice, finding it irrelevant. In looking at the 2014 version, affecting signs affixed to the ground on public property, Wood explained the courts 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.”

While use of Scabby is a protected use of free speech, Wood continued, “a municipality is entitled to implement a nondiscriminatory ban of all private signs from the public roads and rights-of-way,” but such an ordinance must be enforced without selectivity.

The union said the 2014 ordinance didn’t put meaningful limits on the discretion of Code Enforcement Officer Eric Thiel and specifically alleged certain incompatible signs were allowed. But Thiel testified he investigated each of the signs the union referenced and took action against those he found in violation of the town’s policy, saying only five of 60 such signs were improperly on a public right-of-way. The union president documented another 30 signs, and Thiel said for the nine on public property, he either removed them or ordered them to be removed.

“Thiel frankly admitted that he may not have ferreted out every noncompliant sign on a public right-of-way in the town,” Wood wrote. “But he testified that he has never seen a violation and failed to enforce the ordinance against it. He estimated that he had removed approximately 150 signs a year from 2013 to 2015, and that he has never given a sign owner more than 24 to 48 hours to remove a noncompliant sign.”

The panel further explained the town’s ordinance was neither open-ended nor vague; that it sufficiently defined permissible signs on easels and impermissible signs staked to the ground; and that it differentiated between signs and holiday decorations, enough to show Thiel was “observing a testable line, not using unbridled discretion.”

Wood also explained Ellis shouldn’t have addressed the 2015 ordinance as “the union’s allegations about protests it might have conducted are too speculative to create a concrete dispute.” The panel affirmed Ellis’ judgment regarding the 2014 ordinance and vacated her finding on the 2015 ordinance, remanding it for dismissal with prejudice.

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