In 2014, a labor union decided to protest the practices of an employer in Grand Chute, Wisconsin by placing large inflatables in public right-of-ways. These inflatables included a giant rat and a large cat wearing a suit and strangling a worker. Grand Chute’s sign code prohibited the placement of private signs in the right-of-way. After the town government took enforcement action against the union, a federal district court denied the union’s request for a preliminary injunction and granted summary judgment in favor of the town.
On appeal from the summary judgment order, however, Judge Easterbrook, writing for the panel, questioned whether the case involved a live controversy. Since the district court’s order of summary judgment, the union and employer resolved their differences, leading to the end of the protest. The union’s lawyers did not provide any information indicating that the controversy would reasonably expected to arise again. Moreover, the town amended its sign code to change the definition of “sign.” Previously, the definition of sign included “’[a]ny structure, part thereof, or device attached thereto’ that conveys a message.” Judge Easterbrook went on to note that the town’s ordinances prohibiting private signage in the right-of-way are content neutral, but that there was not enough evidence on appeal to determine whether there had been any issue relating to selective enforcement.
Judge Posner, concurring and dissenting, agreed that the district court’s judgment should be remanded, but disagreed with the majority’s conclusion that the sign ordinance was constitutional. Posner noted several problems in the case. First, Posner disagreed with the majority that the case was moot, since he found it likely that the rat would be used in future union protests in Grand Chute, and that Grand Chute would treat the rat in the same way it did in 2014. Posner also noted that the town’s enforcement action came only after the business that was being protested complained to the town, leading to selective enforcement concerns. Posner also questioned whether the rat’s location was even within the public right-of-way, and whether the inflatable rat was truly a menace to public safety as the town suggested. Using his personal experience with union protests in the Chicago area, Posner argued that the inflatable rat did not cause a traffic safety hazard.
This is not the first inflatable rat case. Inflatable rats are a common feature of union protests, and a similar case was heard by the Sixth Circuit back in 2012 in which the union protesters prevailed.