Scabby the Rat is the nickname unions have given to the large, rat-shaped inflatables used by unions when demonstrating at worksites to let the public know that they have a labor dispute with the employer. In the past, courts have held that the use of Scabby at worksites is a form of speech protected by the First Amendment. Does that mean unions can locate Scabby wherever they want at a worksite? A recent decision by the United States Court of Appeals for the Seventh Circuit tells us not necessarily. Construction and General Laborer’s Union No. 330 v. Town of Grand Chute.
In the case, a union used Scabby to show its displeasure with a Toyota car dealership in Grand Chute, Wisconsin. The dealership had used a masonry contractor that the union alleged did not pay standard area wages and benefits to its employees. The union anchored Scabby using tethers staked into the ground in a public right-of-way. The Town, however, had a sign ordinance that prohibited all private signs on public right-of-ways, and so its code enforcement officer ordered the union to remove Scabby. The union sued, claiming that the Town violated its First Amendment rights.
Generally speaking, most speech is protected from content-based government regulation under the First Amendment. However, a government can restrict speech in a public forum without running afoul of the First Amendment if the restriction is content neutral, is narrowly tailored to serve a significant governmental interest and leaves open ample alternative ways to communicate a message. In an earlier decision in the case, the court applied this standard and held that the sign ordinance did not violate the First Amendment because it banned all private signs on public right-of-ways, regardless of content, and was enacted to further public safety—a significant governmental interest—by protecting visibility.
The issue in this second trip to the Seventh Circuit was whether the Town selectively enforced the ordinance by not uniformly policing all types of speech prohibited under its provisions. Selective enforcement by the Town would have violated the First Amendment. The court determined that the evidence showed uniform enforcement. Therefore, it held that the order to remove Scabby from the public right-of-way did not violate the union’s First Amendment rights.
This case illustrates why municipalities should not only carefully craft, but also ensure uniform enforcement of, sign ordinances. Given the potential First Amendment pitfalls in regulating signs through local ordinances, municipalities should consider consulting with legal counsel in drafting and implementing them.