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?
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