By definition, dissenting opinions have no precedential value. Yet they can provide important perspectives into the judges who decide to write them and the manner and direction in which the law might evolve. An example may be Seventh Circuit Judge Posner’s dissent in Construction and General Laborers’ Local No. 330 v. Town of Grand Chute, No. 12-1932 (Aug. 19, 2016). https://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D08-19/C:15-1932:J:Easterbrook:aut:T:fnOp:N:1814025:S:0
The lawsuit challenged the Town of Grand Chute’s demand that a labor union remove an inflatable rat (with protuberant front teeth) and inflatable “fat cat” (wearing a business suit and strangling a construction worker) that were being used to protest a masonry contractor who did not pay union-scale wages. The inflatables were located on a public right-of-way opposite the construction project where the contractor was working. Grand Chute demanded the rat and cat be removed after a property owner complained. After the complaint, for the first time, the Town alleged that the inflatables violated a local sign ordinance. The union sued the Town in federal court alleging a violation of the union’s rights under the First Amendment to engage in free speech. The union argued that the Town had not enforced the sign ordinance against other signs or against the inflatables before receiving the complaint. The union claimed these facts indicated the Town was targeting the union’s First Amendment speech. The district court dismissed the complaint, finding that the sign ordinance had the purpose of protecting community aesthetics and safety.
A three-judge panel of the United States Court of Appeals for the Seventh Circuit overturned the district court’s decision, returned the case to the district court, and provided extensive guidelines for reviewing the case on remand. In a unique opinion, which included large photographs of the inflatable rat and cat, the court determined that the district court had not adequately addressed instances where other signs violated the ordinance but no enforcement had been taken.
The court found that incomplete enforcement of the ordinance “is not an adequate answer to a contention that a unit of government has allowed some speech and stifled other speech, choosing which ideas can be conveyed.” However, because the rat and cat were taken down and the specific labor dispute triggering the lawsuit had been resolved, the majority found that the case may be moot and remanded the case to the district court for such a determination.
Judge Richard Posner, in a separate opinion, objected to sending the case back to the district court. Judge Posner noted that large inflated rubber rats, often used by unions in symbolic protest, are merely large picket signs, which are protected speech. Judge Posner wrote:
“For an ordinance to be allowed to curtail a constitutional right, it must be grounded in a legitimate public concern… The town cites two such concerns: aesthetics and safety. Both are spurious as applied to the union rat…. No citizen of Grand Chute has…expressed revulsion at the rat. There is no evidence of rat-caused congestion or rat-induced traffic accidents in Grand Chute (or anywhere else, for that matter.)” Id. at 17 (Posner, J., dissenting). “And that is no surprise,” Judge Posner continued. “All sorts of what might be considered ‘attractive nuisances’ line the streets and highways of America.” Id. at 18.
Pointing out that the Town “barely tries” to enforce its sign ordinance and finding that “enforcement is sporadic,” he found that there was no “…evidence that the ordinance serves a governmental purpose that would justify a curtailment of the union’s First Amendment Rights (indeed no legitimate interests at all, asunion busting is not such an interest.)” Id. at 23-24. In his opinion, the case did not need to be remanded. Instead, he would have ruled in favor of the union. For Judge Posner, the evidence was clear that the Town of Grand Chute had violated the union’s constitutional right to free speech.
Municipalities enforcing sign ordinances must tread lightly. Stafford Rosenbaum’s Government Law team has extensive experience solving the legal problems facing municipalities in regulating signs. – See more at: https://www.staffordlaw.com/practices/government-law/#sthash.XEKybd42.dpuf