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Douglas M. Bovitt/AP

Inflatable Union Rat Protected by First Amendment

February 06, 2009 01:30 PM
by Denis Cummings
The New Jersey Supreme Court ruled that an inflatable rat used during union demonstrations is protected by the First Amendment from a town ordinance.

Inflatable Rat Has Free Speech Rights

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The New Jersey Supreme Court ruled Thursday that the First Amendment protects the right of the International Brotherhood of Electrical Workers union to display a 10-foot inflatable rat during union protests, despite a Lawrence Township ordinance banning banners, streamers and inflatable signs.

A union leader had been fined $133 for displaying the rat during an April 2005 protest outside a gym. Lawrence argued that the ordinance was in place for aesthetic and safety reasons, not to restrict speech. Further, because the ordinance banned all signs except for those advertising a grand opening, the ban was content-neutral.

The state Supreme Court ruled that, due to the grand opening exception, the ordinance favored certain commercial speech over noncommercial speech and is thus content-based and unconstitutional. It also found that the ordinance was too broad.

“The use of non-verbal, eye-catching symbolic speech represents a form of expression designed to reach a large number of people. … The Township’s elimination of an entire medium of expression without a readily available alternative renders the ordinance overbroad,” wrote Justice John E.  Wallace Jr. in the opinion.

Union leaders and supporters heralded the decision as a victory for free speech. “I think it will have widespread implications, not only for labor,” said labor lawyer James Katz to the Newark Star-Ledger. “It will have widespread implications for all types of protest organizations that rely upon demonstrations and protests in order to reach members of the public.”

The decision does not guarantee that inflatable rats will be allowed in Lawrence. Township officials said that they would rewrite the ordinance to remove advantages for commercial speech over noncommercial speech and loosen restrictions on signs and banners.

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Background: Inflatable rats

Unions have used inflatable rats and other animals during labor demonstrations for nearly two decades. The first rat is said to have been used in 1990 by a Chicago bricklayers union that was looking for an attention-grabbing display for its demonstration.

Balloon-maker Mike O’Connor told Columbia News Service how he created the first rat for a union leader. “We called it Scabby the Rat,” he said. “He loved it. So we built that one, and then it multiplied, like rats do.”

The rat became popular among unions, particularly in urban areas, and the many variations of it have become common at demonstrations. The 10-foot rat used in Lawrence—which is smaller than most others, which are as tall as 30 feet—is rented out 50 times a year, according to the Star-Ledger.

Other inflatable animals have also become popular, such as a cockroach, skunks, “greedy pigs” and “corporate fat cats.” Even union opponents have used inflatable animals; the Center for Union Facts used a 12-foot-tall “union dinosaur” during a 2007 demonstration.

The legality of the inflatable animals has been challenged in several cases, most notably one in Brandon, Fla., where a sheet-metal workers union gave out handbills outside the Brandon Medical Center that used nonunion workers.

The center filed a complaint with the National Labor Relations Board, arguing that the union was engaging in illegal “secondary picketing” because its 16-foot-tall inflatable rat constituted a picketer. The NLRB ruled in 2006 that the union had engaged in unlawful picketing due to reasons besides the rat. It chose not to decide the rat issue, but union leaders anticipate that the issue will eventually have to be decided in court.
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