February 14, 2019
Scabby the Rat lives to fight another day, maybe even at the U.S. Supreme Court.
A federal appeals court on Feb. 14 ruled that the code enforcement officer in Grand Chute, Wis., did nothing unconstitutional or otherwise improper when he ordered a local union to deflate a Scabby balloon that members put up to protest an auto dealer’s pay rates.
The appeals court’s ruling also lays out a path for other localities to ban the labor protest icon through use of sign ordinances without violating unions’ First Amendment rights.
But while a defeat for labor, the ruling is unlikely to give NLRB General Counsel Peter Robb the kind of opening he’s sought for a nationwide ban on the inflatables at protests under most circumstances. Other federal appeals courts have analyzed the same kinds of questions differently, which may mean the Supreme Court will eventually be asked to resolve the issue.
In a ruling filled with analogies to Santa Claus, Spider-Man and Frosty the Snowman, Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit wrote that localities must be careful about discriminating against Scabby while permitting “signs” that are similar in many respects.
The code enforcement officer admitted that he was using an “unwritten holiday decoration exception” to the ordinance and “suggested that Scabby might qualify for this exception if he donned a Santa hat,” Wood noted.
“Indeed, if Santa is sending a message about celebrating the Christmas holiday, or Spiderman is some form of commercial speech touting a new movie release, the Town might have a hard time explaining why they are permissible and Scabby is not,” she said.
The court said it wouldn’t actually answer those questions yet because the Construction and General Laborer’s Union No. 330 hasn’t tried to erect a different sort of Scabby inflatable or been ordered to deflate one under the newer ordinance adopted by the town in 2015.
“Interesting as those questions are, we conclude that they are for another day,” Wood said.
The case is Construction and Gen. Laborer’s Union No. 330 v. Town of Grand Chute, 7th Cir., No. 18-1739, 2/14/19.