Inflatable Rat Case Maybe Moot; Posner Lashes Out

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By Nicholas Datlowe

Aug. 23 — The fight between Grand Chute, Wis., and the Construction and General Laborer's Union over an inflatable rat may be moot, the U.S. Court of Appeals for the Seventh Circuit held Aug. 19 ( Constr. & Gen. Laborers' Local Union No. 330 v. Town of Grand Chute , 2016 BL 269669, 7th Cir., No. 15-1932, 8/19/16 ).

The labor dispute that spawned the rat is over, and the town ordinance requiring that the rat and its inflatable fat cat companion be removed has since been amended, Judge Frank H. Easterbrook wrote for the court.

The rat and fat cat—which holds a construction worker by the neck—were placed by the union to “demonstrate their unhappiness with employers that do not pay union-scale wages,” the court said.

The previous version of the Grand Chute ordinance banned “signs on the public way.” Because the rat and cat were tethered to a ground and near a public road, they qualified. The union sued, asserting the ordinance violated their free speech rights.

The court remanded the case to determine whether the dispute is sufficiently likely to arise again that it would qualify as “capable of repetition yet evading review.” It also reviewed free speech law to assist the district court on remand.

Chief Judge Diane P. Wood joined the opinion.

High Court Criticized

Judge Richard A. Posner concurred with the reversal, but dissented from the remand. The “aesthetics and safety” justifications for the ordinance were “spurious,” and there was evidence of uneven enforcement of the law, he said.

“The balance of evidence is clear enough to justify our deciding that the union's constitutional right of free speech was violated,” he said.

He also took the opportunity to criticize the U.S. Supreme Court's decision in McCullen v. Coakley, 82 U.S.L.W. 4584, 2014 BL 177532 (U.S. June 26, 2014), which invalidated a Massachusetts law creating a 35-foot protest exclusion zone around abortion clinics.

McCullen relied on the notion that people wishing to converse on the street with strangers about political issues is traditional political expression.

“This isn't actually true,” Posner said. “No one wants to be buttonholed on the sidewalk,” and in the 21st century, if you are so confronted, “you flee.”

In McCullen, the privacy interests of the clinic's patients weren't enough to overcome the “negligible contribution that abortion protesters make to the marketplace in ideas,” he said.

“The giant rat in this case no doubt causes distress to the executives of the car dealership that the rat is picketing,” but “after McCullen it is clear” that such speech is protected, he said.

The Previant Law Firm, S.C. represented the plaintiffs. Hinshaw & Culbertson LLP represented Grand Chute.

To contact the reporter on this story: Nicholas Datlowe in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at and Jeffrey D. Koelemay at

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