Rats! Court finds town can restrict union's use of 'Scabby' inflatable

By Nate Beck
BridgeTower Media Newswires

MILWAUKEE, WI - An appeals court has ruled that the town of Grand Chute didn't deflate a union's free-speech rights when it barred a giant blow-up rat from being displayed at a picket line at a construction site nearly five years ago.

Town officials cited a 2014 ordinance governing sign placement when it told the Menasha-based Construction and General Laborers' Local Union No. 330 that it couldn't use a 12-foot-tall inflatable "Scabby the Rat" figure in its picket against a masonry contractor that was paying wages and benefits the union deemed substandard. To drive home its point, the union also displayed an inflatable "fat cat" that was depicted in a business suit and in the act of throttling a construction worker. Both blow-up figures are common fixtures in union pickets.

When the town told the union to take down its inflatable figures, the union sued, arguing the town's ordinance was trampling on its free speech rights. A federal judge in March sided with the town and ruled that Grand Chute had applied its ordinance fairly. On Thursday, a federal appeals court agreed, siding against the union. David Hanus, an attorney for the town of Grand Chute, declined to comment.

"As we acknowledged in our earlier opinion, there is no doubt that a union's use of Scabby to protest employer practices is a form of expression protected by the First Amendment," wrote Chief Judge Diane Wood of the U.S. 7th Circuit Court of Appeals. "We also noted, however, that a municipality is entitled to implement a nondiscriminatory ban of all private signs from the public roads and rights-of-way."

The dispute began in March 2014, after union officials had learned that the Shiocton-based company Pahlow Masonry, a non-union contractor, had been hired to perform work on a Kolosso Automotive car dealership at 2801 W. College Ave., in Grand Chute. According to a court filing, Kelly Buss, business agent for Local 330, reached out to the Grand Chute Police Department to learn the rules for picketing. Days later, about five or 10 union officials began picketing the construction site at a nearby median and inflated the Scabby figure, tethering it to the ground to keep it from blowing away.

The next day, a code-enforcement official for the town visited the picket site and told union officials they needed to take Scabby down because it was violating Grand Chute's sign ordinances. But union officials inflated the rat an hour later, after being told by a police sergeant that Scabby could stay because the union wasn't promoting a commercial purpose. Over the course of the week-long protest in early April 2014, local officials returned to the site and told the union it couldn't display the inflatable figures, citing its sign ordinance. Union officials filed a federal lawsuit on April 18, 2014.

"When we inflate the rat at a work site, we wish to communicate to the public that the business we are protesting is not paying its employees adequate wages and that the contractor fails to treat its employees fairly," according to a briefing Buss filed with the court. "The rat communicates this message more clearly and effectively than our area standards picket signs alone. Without the rat we have a difficult time connecting with our audience."

Union officials didn't return a message seeking comment by press time Tuesday.

In finding that Grand Chute's sign ordinance from 2014 hadn't restricted the union's free-speech rights, the appeals court noted the town had applied the law uniformly. The following year, the town passed a revised sign ordinance, which the union again argued threatened to impede free speech.

Local governments, the appeals court found, can restrict speech in public if their laws are "content neutral," tailored to serve government interests and leave room for other forms of expression. In testimony, the Grand Chute code enforcement officer, Eric Thiel, said he had ordered the removal of about 150 signs a year between 2013 and 2015.

In a federal district-court decision, a judge found both Grand Chute's 2014 and 2014 sign ordinances were evenhanded and aimed at preventing a "messy cacophony" of signs in the city. Wood, writing for the higher court, said that although language in the town's newer ordinance may have brought up questions about whether seasonal blow-up decorations would be allowed under the ordinance, she dismissed those concerns as speculative.

The appeals court ruled that the district court shouldn't have discussed the town's 2015 law, and vacated parts of the lower court's judgement about the ordinance, sending the case back to the district court for dismissal.

Published: Thu, Feb 28, 2019