Constitution Daily

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Even giant rats have constitutional First Amendment rights

November 12, 2014 by Scott Bomboy


A recent case in New York state is the latest in a string of court rulings supporting the use of giant inflatable rats as protected free speech in labor protests.


Wikicommons: Image from Joseph Barillari

The large rat in this case popped up, literally, in a dispute between Microtech Contracting and a union representing some of its workers: the Mason Tenders District Council of Greater New York and the Asbestos, Lead, and Hazardous Waste Laborers’ Local 78.


The use of giant rats at union protest sites goes back decades, but the rat has lost some favor even among its former supporters. In 2013, the AFL-CIO retired its inflatable rodent, popularly known as Scabby the Rat, as it sought to promote a different tact in negotiations.


Since Scabby’s humble birth in Chicago years ago in 1990, the rat with the union label has become a symbol of protest at different locations across America. Anyone can buy a rat, ranging from 6 feet to 25 feet tall, from Plainfield, Illinois-based Big Sky Balloons and Searchlights. The typical rat runs from $2,000 to $8,000.


But how and where these rats have been used have triggered three recent court challenges, with the rats coming out on top in debates over the First Amendment and contracts.


The most recent pro-rodent decision came down in the Microtech case in New York. Federal District Judge Joseph Bianco ruled that the rat didn’t violate the collective bargaining agreement in force, and the court lacked jurisdiction.


Specifically, Bianco said the rat didn’t violate the union’s no-strike clause, “[T]he defendants’ peaceful use of a stationary, inflatable rat to publicize a labor protest is protected by the First Amendment.”


Using the rat was a form of general speech, Bianco said, and banning the rat was tantamount to barring any general speech harmful to the plaintiff’s business image.


Back in 2011, giant rats won a key ruling from the National Labor Relations Board when it held that deploying the rodent protest balloon wasn’t same as using a picket sign at a protest site.


Under the National Labor Relations Act, unions can’t picket or engage in “secondary activity” or “secondary boycotts” that lead neutral parties to “cease doing business with employers.”


The 16-foot rat was floated by a union at a hospital construction site, and the Board in a 3-1 decision said its use wasn’t intimidating.


“It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital,” the Board said.


The Supreme Court decided in 1942 that the use of picketing warranted special attention.


“Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated,” said Justice William Douglas in a concurring opinion in the Bakery Drivers Local case.


The giant rat also proved victorious in a 2009 New Jersey Supreme Court case. Lawrence Township, New Jersey, had banned inflatable rats and other inflatable signs, unless they were used at store grand openings, under its zoning powers.


IBEW Local 269 fought the ban after it was fined for using an inflatable rat. The union argued that the rat wasn’t a form of commercial speech, as the township stated in its law, but it was protected free speech.


“Content-based restrictions that bar noncommercial speech must be subjected to the most exacting scrutiny,” a unanimous New Jersey court said. “There is no evidence to suggest that a rat balloon is significantly more harmful to aesthetics or safety than a similar item being displayed as an advertisement or commercial logo used in a seven-day grand opening promotion.”


Scott Bomboy is the editor in chief of the National Constitution Center.


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