Are Rats Permitted as Symbolic Protests on Public Property?

Construction unions often use a large, inflatable rat to protest work that is done by nonunion contractors. Usually, the nonunion company continues with its work. As long as the rat is on a public grass strip or similar and not blocking traffic, no one litigates its use. And often, the rat-protest has no practical effect on reducing patronage to a business.

But what happens if a city outlaws the use of rats on public property?

That’s what Grand Chute, Wisconsin did after a nonunion contractor complained.

The union argued that it had a First Amendment right to protest by using the rat.

The union prevailed in a federal appeals court.

Judge Posner (a Republican appointee and generally conservative but not rigid judge) reasoned as follows:

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.)

For context, consider Colin Kaepernick’s protest of not standing during the national anthem at NFL games (see below, a photo from yesterday that illustrates how objectionable speech is best handled, i.e., ignoring or shunning). Suppose that a public entity, such as the state of Wisconsin, required everyone to stand during the national anthem at a Packers football game. The law would be struck down, again, on First Amendment grounds.

Would you want the First Amendment interpreted otherwise? If so, where you draw the line between protected protest and valid state regulation?