Construction and General Laborers' Local Union No. 330 et al v. Town of Grand Chute
Filing
12
ORDER DENYING 2 Motion for Preliminary Injunction, signed by Chief Judge William C. Griesbach on 04/29/2014. SEE ORDER FOR FULL DETAIL. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CONSTRUCTION AND GENERAL
LABORER’S LOCAL UNION NO. 330,
Plaintiff,
Case No. 14-C-455
v.
TOWN OF GRAND CHUTE,
Defendant.
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Construction and General Laborer’s Local Union No. 330 brought this action under
42 U.S.C. § 1983 against the Town of Grand Chute for violating the Union’s rights under the First
and Fourteenth Amendments of the United States Constitution, as well as similar provisions of the
Wisconsin Constitution. The Union also claims the Town’s conduct violates Section 7 of the
National Labor Relations Act, 29 U.S.C. § 157, which recognizes the right of employees to organize
and engage in collective bargaining. In essence, the Union claims that the Town violated its right
to free speech by ordering it to remove a giant inflatable rat from the public right-of-way adjacent
to a construction site where a masonry contractor who pays sub-standard wages is employed. The
rat is apparently a symbol of labor unrest, and the Union deploys it, along with picketers, to
communicate its message to the public that the business its members are picketing is not treating
its employees fairly. The Union also uses a giant inflatable cat to convey a similar message. The
“fat” cat is displayed wearing a business suit and is strangling a construction worker. The Town
ordered the Union to remove the inflatable rat and cat from the Town’s right-of-way because they
are in violation of the Town’s sign ordinance. The case is before on the Union’s motion for a
preliminary injunction. For the reasons that follow, the motion will be denied.
I. Background
Article XV of Chapter 535 of the Town’s ordinances governs signs and billboards. The
purpose of the article is “to establish standards to safeguard life and property and promote public
welfare and community aesthetics by regulating the appearance, construction, location and
maintenance of all signs and billboards.” Ordinance § 535-104 (ECF No. 2-1.) The ordinance
defines a "sign" as "[a]ny structure, part thereof, or device attached thereto or painted or represented
thereon which displays or includes any numeral, letter, word, model, banner, emblem, device,
trademark or other representation used as, or in the nature of, an announcement, advertisement,
direction or designation of any person or thing in such a manner as to attract attention from outside
of the building." § 535-105. The ordinance then proceeds to forbid all signs on public rights-ofway except for traffic-related signs. "Signs shall not be permitted on public rights-of-way except
for traffic control, parking and directional signs and as otherwise specified in this section." § 535106C.
The Union began picketing at the cite on March 31, 2014. In addition to the picket signs,
which its members carried, the Union placed its large inflatable rat on a grassy area within the
public right-of-way. To prevent it from blowing away, the inflatable rat was tethered to the ground
with several stakes. A portable air compressor was also attached to the rat to keep it inflated. The
inflatable rat and cat are depicted in photos attached to the Declaration of Kelly Buss. (ECF No.
4.) The inflatable balloons were not left at the site when Union members were not present. At oral
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argument, counsel for the Union explained that picketing was done at the site for only a couple of
hours in the morning and then in the afternoon. The rat and/or cat would be deflated and taken away
over lunch and when picketing was done for the day.
II. Analysis
“A party seeking a preliminary injunction is required to demonstrate a likelihood of success
on the merits, that it has no adequate remedy at law, and that it will suffer irreparable harm if the
relief is not granted.” Promatek Industries, Ltd. v. Equitrac Corp., 300 F.3d 808, 811 (7th Cir.
2002). “If the moving party can satisfy these conditions, the court must then consider any
irreparable harm an injunction would cause the nonmoving party.” Id. “Finally, the court must
consider any consequences to the public from denying or granting the injunction.” Id. “Sitting as
a court of equity, the court then weighs all these factors employing a sliding-scale approach.” Id.
In this case, the court concludes that the Union has failed to demonstrate a likelihood of success on
the merits and thus finds no need to address the remaining factors.
There is no doubt that the Union’s use of the inflatable rat and cat is expressive conduct
within the meaning of the First Amendment. Courts have recognized that the use of an inflatable
rat as part of a labor protest is protected, symbolic speech under the First Amendment. See Tucker
v. City of Fairfield, Ohio, 398 F.3d 457, 462 (6th Cir. 2005) (citing Int'l Union of Operating Eng'rs,
Local 150 v. Village of Orland Park, 139 F. Supp. 2d 950, 958 (N.D. Ill. 2001) ("We easily
conclude that a large inflatable rat is protected, symbolic speech.")). There is also no doubt that the
inflatable objects constitute signs within the meaning of the ordinance. They are structures used as
an announcement and are intended to attract attention.
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Specifically, in defining signs as
“structures,” or devices attached to or painted on structures, the ordinance appears merely to prohibit
the creation of free-standing, constructed, or built-up signs on public rights-of-way. A structure,
in its simplest terms, is “something (as a building) that is constructed;” “something arranged in a
definite pattern of organization.” MERRIAM -WEBSTER ’S COLLEGIATE DICTIONARY at 1167 (10th
ed. 1999). The Town does not contend that this definition would encompass an individual standing
on the right-of-way merely holding a sign in his hands, as there is no “structure” in that picture.
Similarly, the ordinance would not rightly be applied to an individual who, in holding a sign, rested
the bottom edge of that sign on the ground. Again, there is no structure present, nothing of the sort
of a free-standing nature denoted by the term “structure”. On its face, then, the ordinance prohibits
the Union’s placing the inflatable rat and cat on the public right-of-way.
A plaintiff may show that a law is facially unconstitutional if he shows either (1) it is
unconstitutional in every conceivable application, or (2) it seeks to prohibit such a broad range of
protected conduct that it is unconstitutionally overbroad. Members of City Council v. Taxpayers
for Vincent, 466 U.S. 789, 796 (1984). A governmental entity may impose reasonable restrictions
on the “time, place, or manner of protected speech, provided the restrictions ‘are justified without
reference to the content of the regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels for communication of
the information.’” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
The plaintiff argues that, by excepting traffic-related signs from the ordinance’s scope, the
ordinance itself is favoring some forms of speech at the expense of others and is thus not contentneutral. I am unpersuaded, however, that “traffic control, parking and directional signs” are the sort
of “content” or “viewpoints” protected by the First Amendment. That is, a stop sign is not
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expressing any kind of speech or viewpoint any more than a sign reading “No Left Turn” is. Thus,
the ordinance’s exception for such signs does not impermissibly favor any actual viewpoints at the
expense of others.
Moreover, "[t]he principal inquiry in determining content neutrality . . . is whether the
government has adopted a regulation of speech because of disagreement with the message it
conveys." Ward, 491 U.S. at 791. Here, there is no indication that the ordinance was adopted
because the town disagreed (or agreed) with any particular messages about any subject whatsoever.
They simply sought to prohibit all signs, while reserving the ability to post traffic-related signs, a
rather pressing need for any municipality.
The ordinance is also narrowly tailored to a significant government interest. It applies to
all signs placed in the public right-of-way, but only applies to signs that are placed on or are
themselves structures.
Because the ordinance only applies to such structures, the First
Amendment’s protection of the individual picketer or protester would not be compromised. In
Members of the City Council v. Taxpayers for Vincent, the Supreme Court upheld a city ordinance
prohibiting the posting of all signs on public property. 466 U.S. 789. Individuals in Los Angeles
wishing to express a viewpoint could still carry signs, distribute pamphlets and communicate
verbally in order to convey their message. As such, the ordinance did not burden more speech than
was necessary to accomplish the city’s goal of better aesthetics. I also note that the posting of freestanding signs on public, rather than private, property is not a traditional means of expressing
protected speech. See Foti, 146 F.3d 629, 640 (9th Cir. 1998) (“There are obvious differences
between a sign posted and left unattended for several weeks and a picket sign carried by a
protestor.”) Indeed, an ordinance allowing any and all signs to be posted on public rights-of-way
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could lead to government subsidized advertising space, causing distraction and clutter, both of
which a municipality has the right to prohibit.
The Union suggests that because it deflates and removes its props at night and when its
members are not picketing, the Town has no interest in prohibiting their use. In the Union’s view,
the Town could narrowly tailor its ordinance so that it would not apply to such non-permanent
devices and still accomplish its purposes of safeguarding life and property and promoting public
welfare and community aesthetics. This was essentially what the Sixth Circuit held in Tucker in
affirming the district court’s decision granting a preliminary injunction under a similar
circumstances:
There is no objective evidence in the record before us suggesting that the temporary
placement of the balloon in the public right-of-way has any adverse effects, such as
obstruction of pedestrian or automobile traffic. By applying the ordinance to
prohibit the temporary use of the balloon in this case, it therefore appears that the
City has applied its ordinance in a manner that is “substantially broader than
necessary” to achieve its interests.
398 F.3d at 464.
In reaching this conclusion, however, the Sixth Circuit applied the wrong test. As Judge
Kennedy explained in dissent, the Court applied the “least restrictive alternative” test instead of the
“narrowly tailored” test. Quoting the Supreme Court’s decision in Ward, Judge Kennedy explained:
“So long as the means chosen are not substantially broader than necessary to achieve
the government's interest . . . , the regulation will not be invalid simply because a
court concludes that the government's interest could be adequately served by some
less-speech-restrictive alternative.” Ward, 491 U.S. at 800. Thus, the Court has
indicated that, in this context, the narrowly tailored test is a far more lenient test than
a least restrictive means test. Id. Indeed, some amount of overinclusiveness is
permissible provided that the evil targeted by the statute is permissible. See id. (The
Court indicates that “the . . . regulation may [not] burden substantially more speech
than is necessary” indicating that some overinclusiveness may be permissible).
398 F.3d at 467 (Kennedy, J., dissenting).
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It is also clear that attempting to carve out an exception for temporary moveable structures
like the Union’s props would pose significant problems. For example, the Union contends in this
case that it only seeks to place its props at the cite for a couple hours each day while its members
are picketing. But what if the Union or some other party wishes to man its picket lines around the
clock? Can the Town limit the amount of time the structure can be placed on its land even when
Union members are present? A second problem is the size of the structure. The rat in this case
appears to be fifteen feet in height. What is a reasonable size? How many inflatable objects or
other structures does the Town have to permit? These are the kind of issues that no doubt will arise
if the Town attempts to carve out a narrow exception for the Union. Obviously, the Town’s ban on
signs on public rights-of-way is an attempt to maintain its public rights-of-way in an uncluttered
condition without subjecting its taxpayers to lawsuits from disgruntled parties who believe they
were improperly denied a permit to place their particular sign on the public right-of-way. It is
narrowly tailored to achieve this purpose.
The Town’s ordinance leaves open alternative methods for the Union to communicate its
message, including through the use of its chosen image. Union members remain free to picket the
site with handheld signs that bear depictions of rats or cats. They can wear costumes, place a rat
figure on the top of their cars or in truck beds. They can hand out leaflets conveying their message.
These and other means of communicating its message remain available. In short, citizens have the
right to communicate speech, in person, via handbills, signs or slogans, but they do not necessarily
have an unfettered right to place structures or free standing signs on public property. Accordingly,
given the town’s significant interest in traffic safety, and given that the town’s content neutral
ordinance forbids only structural signs while leaving open ample other avenues of communication,
I find that the ordinance, as interpreted above, is constitutionally sound.
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Finally, I note that the Union also argued that the Town had discriminated in its enforcement
of its ordinance. It submitted photos purporting to show other signs that were located in the rightof-way in violation of the Town’s ordinance. (Decl. of Mark Linsmeier, ¶¶ 6-8, ECF No. 5.) The
Union also claimed that the Town did not act until the Union activity was reported in the local
media. These facts, the Union argued, demonstrated that the Town was discriminating against the
Union’s message.
The court does not agree. As the Town explained, all but one of the photos submitted by
the Union depict signs on private property or outside of the Town’s jurisdiction. The one violation
that was shown was not known to the Town at the time. Upon learning of it, the Town has directed
the owner to remove the sign. This is not evidence of discriminatory enforcement. Nor is the fact
that the Town did not make its final decision until after a newspaper article appeared on the issue.
The Union had been told even before the article appeared to remove the objects. After the Union’s
attorney became involved, the Town sought legal advice of its own before making its final decision.
The Union offered no evidence to support its assertion that the Town was somehow motivated by
the content of its message. Of course, if such evidence surfaces later, the Union may renew its
motion. On the record as it now stands, however, the court finds that the Town has not enforced
its ordinance in a discriminatory manner.
III. Conclusion
Accordingly and for the reasons stated above, the court finds that the Union has failed to
show that it has a reasonable likelihood of success on the merits. The Town’s ordinance is facially
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valid and has not been enforced in a discriminatory manner. The Union’s motion for a preliminary
injunction is therefore denied.
Dated at Green Bay, Wisconsin this
29th
day of April, 2014.
BY THE COURT
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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