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Local union calls censorship over deflation of “Scabby the Rat,” courts disagree – March 2019

Grand Chute, WI

A northeast Wisconsin labor union used a massive “Scabby the Rat” balloon to disparage what it called an unscrupulous local car dealership. The town required the union to deflate the rat, because it violated a local signage ordinance. The union complied, but then filed suit in federal district court, which sided with the town. An appeals court also ruled for the local government.

Key Players

Laborers’ Local 330 (Local 330) is a chapter of the Construction and General Laborers’ Union. It has about 1,800 members across northeast Wisconsin, according to its website.

Kelly Buss is president of Local 330.

“Scabby the Rat,” an inflatable rodent, is a nationally recognized symbol of labor protests. Though Scabby can vary in size, the version employed in Grand Chute, Wisconsin — a town of 21,000 about 30 miles southwest of Green Bay — was 12 feet tall.

Further Details

In March 2014, Local 330 learned that a Grand Chute Toyota dealership was not paying standard area wages and benefits to a masonry company it was contracting. In response, the union launched an informational picket campaign, inflating a 12-foot-tall “Scabby the Rat” in the median along the major road directly across from the dealership.

Just a day after the protest began, the town’s code enforcement officer, Eric Thiel, approached Buss, notifying him that the union would have to deflate Scabby. The reason: it violated a 2014 local signage ordinance that prohibits private signs on public rights-of-way. Buss expressed surprise, since he had discussed his plans to inflate the rat with the local police department a few days before doing so, and heard no objection. Nevertheless, Local 330 soon deflated Scabby.

The union subsequently filed suit, claiming the town had discriminated against its Scabby display based on the content of its intended message. Content-based censorship, the union argued, violated its First Amendment rights. But the U.S. District Court judge sided with the town, saying the ordinance did not violate the First Amendment — leading Local 330 to appeal to the 7th U.S. Circuit Court of Appeals. There, it argued that the signage ordinance gave unlimited discretion to the code enforcement officer, and enabled selective, content-discriminatory enforcement of the law.

Outcome

Appeals court rules against local union, Scabby the Rat

In March 2019, five years after the dispute began, a three-judge panel of the federal appellate court unanimously sided with the town’s enforcement of its ordinance. The court agreed that “Scabby the Rat”  could constitute a protected form of speech under the First Amendment, but ultimately decided that the town’s enforcement of its signage law, which it determined to be content-neutral, was constitutional.

“The Union gives us no reason to doubt the district court’s findings of fact, which we can disturb only if we find them to be clearly erroneous,” the panel wrote. “Thiel’s testimony also suffices to show that the town’s ordinance was not so open-ended and vague as to leave Thiel with no guidance whatsoever … He was observing a testable line, not using unbridled discretion. Indeed, no evidence indicated that Thiel was anything but systematic in his enforcement of the 2014 ordinance.”

External References

CONSTRUCTION AND GENERAL LABORERS’ UNION NO. 330 v. TOWN OF GRAND CHUTE

Union loses free speech fight over inflatable rat at 7th Circuit, Reuters

‘Scabby The Rat’ Can Be Chased Out Of Wis. Town: 7th Circ., Law360

Appeals Court Rules that Town’s Ban on Union’s Inflatable Rat Did Not Violate the First Amendment, JDSupra

Prepared by Maya Gandhi ’20

Uploaded April 21, 2019