Bruce Vielmetti

Milwaukee Journal Sentinel

Giant rats could be headed back to Grand Chute after a federal appeals court reversed a judge's decision for the Fox Valley town that claimed the rats — inflatable rubber ones — were illegal signs, not free speech.

In 2014, Grand Chute ordered the Construction and General Laborers' Local Union No. 330 and its president, Kelly Buss, to take down an inflatable rat and a cat (wearing a suit and strangling a worker) that the union had erected on a median between busy College Ave. and a service road to protest a non-union construction project at nearby Kolosso Automotive.

The union complied but sued Grand Chute, saying it acted only after the picketed business complained, which the union said amounted to selective enforcement and a violation of the union's free speech rights. U.S. District Judge William Griesbach denied an injunction and later granted summary judgment to the town.

The union appealed, and this month the 7th U.S. Circuit Court of Appeals vacated that judgment, sending the case back for a determination of whether it may be moot. The construction project is long completed, and the picketing ended, but the union says the same issue could arise again.

Writing for a majority of a three-judge panel, Judge Frank Easterbrook expressed some First Amendment concerns but concluded the record hadn't been developed enough to indicate how evenhandedly, or not, the town enforced its ordinance.

"The district court needs to make findings about the town’s actual enforcement practices — unless this controversy is moot," Easterbrook wrote.

But he noted, "That the town’s police did not tell the union to remove the rat and cat until the target of the union’s campaign complained offers further support for the union’s contention that enforcement depends on speakers’ messages."

The town did not prevent other forms of picketing. Union members could still carry signs, or wear sandwich board signs, and could even, a town official suggested, have driven around with the inflatables on the backs of trucks. It was staking them down in the median that violated the ordinance, the town said.

In dissent, Judge Richard Posner, one of the best-known and most prolific federal judges in the nation, would have just granted summary judgment to the union, concluding that even if there was no record in the case demonstrating motivation, it seemed pretty obvious the automotive group wasn't worried about safety, but its reputation.

He bemoaned how sending a case back to the district court usually leads to motions, a trial, appeal, briefing, and other procedure that delay a final decision for months.

"The balance of evidence is clear enough to justify our deciding that the union’s constitutional right of free speech was violated," Posner wrote.

Town's concerns

The town cited two concerns about the signs: aesthetics and safety.

"Both are spurious as applied to the union rat," Posner wrote. "Some people may indeed think it rather handsome, in a way that one might find a dinosaur rather handsome (in fact the rat bears at least a faint resemblance to Tyrannosaurus Rex)—others that it is repulsive (those protuberant teeth!), but government cannot be allowed to suppress the visual equivalent of political speech without a more substantial aesthetic complaint; there are negative reactions even to great art."

He called the city's claim that the rat would lead to traffic safety issues because of gapers, "pure conjecture, and implausible to boot."

Though he acknowledged it might "scandalize" some readers that he was reaching beyond the record in the case, Posner wrote about his own experience with a roadside rat. He said that for weeks during his daily commute from Hyde Park to downtown Chicago, he passed a similar union picket, and large inflatable rat, along Martin Luther King Drive, and looked it at nearly every time.

"This glance never caused me to swerve, crash, crouch in my seat, avert my eyes, hit a pedestrian, or cause other mayhem. Nor did I ever observe an accident, even a swerve, in the vicinity of the rat. I saw no driver, or pedestrian, upon glimpsing the rat flee in terror."

He notes the rat was much closer to the street than the one in Grand Chute.

Posner suggests that on remand to the district court perhaps Grand Chute will present testimony about safety issues or residents' revulsion of the rat, but says it would be of doubtful weight, "given all the ugly signs and displays Grand Chute tolerates."

"Given the town’s sporadic and arbitrary enforcement of its prohibition against signs in public rights‐of‐way, its claimed concern with safety and aesthetics rings hollow," Posner wrote.