In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1932
CONSTRUCTION AND GENERAL LABORERS’ LOCAL UNION NO.
330 and KELLY BUSS,
Plaintiffs‐Appellants,
v.
TOWN OF GRAND CHUTE, WISCONSIN,
Defendant‐Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 14‐C‐455 — William C. Griesbach, Chief Judge.
____________________
ARGUED NOVEMBER 6, 2015 — DECIDED AUGUST 19, 2016
____________________
Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
EASTERBROOK, Circuit Judge. Rats. This case is about rats.
Giant, inflatable rats, which unions use to demonstrate their
unhappiness with employers that do not pay union‐scale
wages. Cats too—inflatable fat cats, wearing business suits
and pinkie rings, strangling workers. Here is what they look
2 No. 15‐1932
like, as deployed during a labor dispute in the Town of
Grand Chute, Wisconsin:
No. 15‐1932 3
As the pictures show, the rat and the cat are staked to the
ground, to prevent the wind from blowing them away.
Those stakes led to this litigation.
Grand Chute forbids private signs on the public way.
Municipal Code §535‐106C. Another section defines signs to
mean “[a]ny structure, part thereof, or device attached there‐
4 No. 15‐1932
to” that conveys a message. Municipal Code §535‐105. Picket
signs and sandwich boards are lawful under this definition,
and the Town did not interfere with the Union’s use of them.
But the Union inflated its rat and cat in the median of a
highway, and because they were staked to the ground the
Town treated them as structures.
If picketers had held them down by ropes, there would
not have been a problem under the Town’s rules. Likewise if
they had been inflated with helium and floated six inches
above the ground. The Town suggested that the protesters
mount the cat and rat on a flatbed truck, which would not be
a structure; the Union declined. Staked to the ground on the
public way, as they were, they were forbidden. The Union
removed them when directed to do so and filed this suit un‐
der 42 U.S.C. §1983, contending that the local ordinance vio‐
lates the Constitution’s First Amendment, applied to the
states through the Fourteenth.
The district court denied the Union’s motion for a prelim‐
inary injunction, 2014 U.S. Dist. LEXIS 59340 (E.D. Wis. Apr.
29, 2014), and about a year later entered summary judgment
for the Town. The Union has appealed from the second order
only.
Unfortunately, neither the district court nor the parties
considered the possibility that this case may be moot. By the
time the court entered summary judgment, the construction
project that led to the use of demonstrative rats and cats had
been completed, and the Union was no longer picketing. It
has not asked for an award of damages, which led us to
wonder whether we have a live controversy. At oral argu‐
ment counsel for the Union said yes, because a dispute
might crop up again if the Union decides to demonstrate
No. 15‐1932 5
against a future construction project in Grand Chute. Yet for
a case to remain live because it is capable of repetition, there
must be “a reasonable expectation that the same complain‐
ing party would be subjected to the same action again.”
Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The record
does not contain any information about this likelihood. How
many construction projects built with non‐union labor have
caused labor disputes in Grand Chute? Are more such pro‐
jects planned? And even if such a project is built, and a dis‐
pute recurs, this suit may still be moot if the controversy
about that future project would not evade review. Labor dis‐
putes often are short‐term affairs, but many are long lived.
Even for short‐term disputes, the possibility of damages
keeps a case alive.
And there is one more problem: between the district
court’s order denying interlocutory relief and its order grant‐
ing summary judgment, the Town amended its code (see
Ordinance 2015–01) and changed the definition of a sign.
The citations in this opinion are to pre‐amendment language
and numbering. None of the parties alerted us (or the district
court) to this fact, which potentially affects the proper dispo‐
sition if the controversy remains live.
We cannot decide this suit on the merits without being
confident that we have a justiciable controversy. The district
court needs to take another look at it. If the Union persists in
abjuring damages, the district court must determine whether
the probability of a fresh dispute between this union and
Grand Chute is high enough—and the risk that it would be
over too quickly to allow judicial review also high enough—
to satisfy the “capable of repetition yet evading review” pro‐
viso to the mootness doctrine. Then it must address the va‐
6 No. 15‐1932
lidity of the Town’s current ordinances, rather than one that
was changed before the entry of final judgment.
Although we cannot resolve the merits while the pres‐
ence of a justiciable controversy is in doubt, we can say a few
words about other issues that the district court needs to con‐
sider if the controversy remains live.
Members of City Council of Los Angeles v. Taxpayers for Vin‐
cent, 466 U.S. 789 (1984), holds that a city may ban all private
signs (including political ones) from the public way. Grand
Chute has done just that—on paper. That the city allows its
own signs (e.g., “No Left Turn”) does not require it to allow
private structures on public property, whether or not the
private structure is designed to convey a message. See, e.g.,
Pleasant Grove v. Summum, 555 U.S. 460 (2009).
The Union cannot avoid Taxpayers for Vincent by observ‐
ing that the rat and cat are symbolic speech, because Clark v.
Community for Creative Non‐Violence, 468 U.S. 288 (1984),
holds that a public body may forbid the “action” component
of symbolic speech, provided that it does not discriminate
against disfavored viewpoints. In Community for Creative
Non‐Violence the National Park Service forbade all tents on
the Mall in Washington, D.C., and the Court held that this
was valid even though a group wanted to camp out to make
a political point.
The ordinances in Grand Chute are comprehensive and
content‐neutral, and decisions such as Community for Creative
Non‐Violence and Taxpayers for Vincent hold that a govern‐
mental body need not make ad hoc exceptions to such rules.
To the contrary, limiting official discretion about who is enti‐
tled to speak is a vital goal of the Supreme Court’s jurispru‐
No. 15‐1932 7
dence under the First Amendment. See Forsyth County v. Na‐
tionalist Movement, 505 U.S. 123, 130–31 (1992); Niemotko v.
Maryland, 340 U.S. 268 (1951). The sort of ad hoc exception
that the Union wanted Grand Chute to make (on the ground
that the rat and cat did not jeopardize traffic safety and were
only temporary) not only would have transgressed the rule
against open‐ended discretion but also would have created a
form of content discrimination. See United States v. Stevens,
559 U.S. 460, 470–71 (2010); Houston v. Hill, 482 U.S. 451, 465–
67 (1987). That in turn would have called into question the
Town’s entitlement to enforce its ordinance against anyone.
See, e.g., Reed v. Gilbert, 135 S. Ct. 2218 (2015).
The Union maintains, however, that the Town has under‐
cut its own ordinance by selective enforcement, permitting
messages of which it approves while enforcing the ordinance
against unions and other unpopular speakers. If the ordi‐
nance in operation discriminates according to the content of
speech, then only a compelling justification could save it,
and the Town has not argued that it has the sort of justifica‐
tion that would authorize content discrimination.
The district court’s opinion denying the Union’s motion
for a preliminary injunction did not address in any detail
how the ordinance is being administered. The opinion grant‐
ing summary judgment for the Town took up that topic but
did not resolve it.
The Union pointed to a number of message‐bearing
structures that it believes violate the ordinance. The Town
replied that some of these are outside its borders and that
others are not on the public way. Instead of deciding who is
right, the district court wrote: “Even assuming these signs
did violate the ordinance … they do not prove the Town’s
8 No. 15‐1932
enforcement against the rat was arbitrary, and we cannot in‐
fer from evidence of non‐enforcement that an actual en‐
forcement was for an invidious reason.” That would have
been an appropriate response if this were, say, a dispute
about zoning variances. But it is not an adequate answer to a
contention that a unit of government has allowed some
speech and stifled other speech, choosing which ideas can be
conveyed. Reed tells us that content discrimination is almost
always forbidden. If this suit is live, the Union’s claim of con‐
tent discrimination cannot be dismissed on the ground that
the Town lacks an “invidious reason” for preferring some
speech over other speech.
The Union also pointed to a number of signs posted on or
near the Town’s fire stations. The district court thought these
irrelevant for two reasons: first, “the signs at issue belonged
to the Town’s own employees”; second, one of the Town’s
managers testified that a particular sign at a fire station
“could be legal” because it may not have been a structure.
Once again, neither of these responses is satisfactory in a suit
that presents a claim of content discrimination. Summum and
similar decisions hold that a public body may engage in
speech on its own behalf without offering private citizens
equal access to public property. But Summum does not hold
that a unit of government may favor speech by its workers
over speech by other persons. That would be clear enough if
the fire department’s workers had posted signs boosting the
Mayor’s re‐election or condemning labor unions, while the
Town resolutely blocked opposing perspectives on the pub‐
lic way. As for “it could be legal”: the district judge needs to
determine whether the signs were (or are) legal under the
ordinance. If the Town is distinguishing among speakers
covered by the ordinance, it must meet the Supreme Court’s
No. 15‐1932 9
standards for content discrimination. That the Town’s police
did not tell the Union to remove the rat and cat until the tar‐
get of the Union’s campaign complained offers further sup‐
port for the Union’s contention that enforcement depends on
speakers’ messages. (The rat and cat were easily visible to
the police, who ignored them for two days until the com‐
plaint was made.)
Finally, the Union contends that the Town has allowed
other speakers 30 days to remove structures that violate the
ordinance, while it insisted that the Union remove the rat
and cat immediately. Yet again the district judge did not de‐
cide whether this contention is true. The Union put in the
record some printed notices that the Town has used, and
these notices indeed say: “All cited violations shall be cor‐
rected within 30 days after written notification”. One notice
has a handwritten addition changing 30 days to 48 hours,
but others left the form as is. A Town employee testified that
the printed notice is wrong and that there is no 30‐day grace
period. It may be, as the Town contends, that allowing such
a delay would undermine the ordinance unduly. Still, if the
Town does allow other speakers more time than it allowed
the Union, it has engaged in content discrimination. The dis‐
trict court needs to make findings about the Town’s actual
enforcement practices—unless this controversy is moot.
We trust that, if this suit still presents a live controversy,
the district judge will proceed with dispatch appropriate to
the nature of the constitutional claim. We are prepared to
give any appeal the same treatment.
The judgment is vacated, and the case is remanded for
proceedings consistent with this opinion.
10 No. 15‐1932
POSNER, Circuit Judge, concurring and dissenting. I agree
that the judgment in favor of the defendant (the town) must
be reversed, but I disagree that the case should be remand‐
ed. The balance of evidence is clear enough to justify our de‐
ciding that the union’s constitutional right of free speech
was violated.
When a case is remanded for trial, the result is almost
certain to be a significant delay of the final resolution of the
parties’ controversy. Federal district judges have at any giv‐
en time a number of cases on their docket, and so Chief
Judge Griesbach, to whom this case is being remanded, is
unlikely to be able to turn to it immediately. Moreover the
parties’ lawyers will need time, maybe a good deal of time,
to get the case ready for trial. There will be time spent on
pretrial motions. There will be the trial itself. After the trial
and judgment may come post‐judgment motions, and until
those motions are ruled on the case will not be ready for an
appeal. The appeal will trigger efforts by this court’s settle‐
ment office to help negotiate a settlement of the case. If its
efforts fail, as often is the case, the case will linger on our
docket for months as the lawyers prepare their briefs. There
will then be oral argument, followed, probably months—
sometimes a year or more—later by a decision, which may in
turn be followed by a petition for rehearing, whether by the
panel, the entire court, or either. Assuming that the petition
is denied (the usual ruling) and no further remand is or‐
dered, the case will at last be at an end. But the remand or‐
dered in the first appeal will have delayed the final decision,
probably by a year and maybe by much more. (In another
case heard by this panel at the same sitting in which we
heard this case, there was a three‐year interval between the
No. 15‐1932 11
filing of the appeal to this court and the oral argument of the
appeal.)
Delay is costly to the parties, burdens the court system by
increasing the time spent by the judges on a case, and de‐
prives the legal community for a significant period of time of
the informational and precedential value of a final decision.
Appellate courts should try to make the first appeal in a case
the last and order a remand only when the need for further
proceedings at the trial level is imperative. It was and is not
in this case. Both parties had moved for summary judgment,
and the judge had denied the plaintiff’s (the union’s) motion
and granted the defendant’s (the town’s) and so entered fi‐
nal judgment for the town. The union is not asking merely
that the judgment for the town be vacated; it wants us to
grant summary judgment in its favor, thus terminating the
litigation. We should do that.
During the litigation the construction project that in‐
spired the union’s protest was completed, but that doesn’t
end the parties’ dispute. At the oral argument the union’s
lawyer told us that the union is very likely to use the rat
again in a protest in Grand Chute, and the town has not
suggested that a future rat protest would be treated differ‐
ently. This case has been extensively briefed and argued, and
the parties do not “plainly lack” an interest in the outcome,
so we may decide it now. Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 192 (2000).
There is, it’s true, a genuine unresolved factual dispute: it
is over the town’s motivation in banishing the rat. The
town’s enforcement of the sign ordinance that was the basis
of the banishment is erratic, and the proximate cause of the
rat’s banishment was a complaint about the rat by an em‐
12 No. 15‐1932
ployee of the company (Kolosso Automotive) that the union
was picketing. It’s unlikely that the employee’s complaint
had anything to do with aesthetics or safety, as distinct from
not wanting his employer to be publicly depicted as a rat
and as a result lose face in the town and be pressured strong‐
ly by the union in any subsequent negotiations with it. But
an evidentiary hearing would be required to determine the
actual motivation of the employee and the town official, and
thus to decide whether in banishing the rat the town had
been deliberately (and improperly) taking sides in a public
dispute between a union and an employer. But even without
undisputed evidence of hostility to the union we should or‐
der the entry of final judgment in favor of the union.
There is no doubt that the large inflated rubber rats wide‐
ly used by labor unions to dramatize their struggles with
employers are forms of expression protected by the First
Amendment. Tucker v. City of Fairfield, 398 F.3d 457, 462 (6th
Cir. 2005). The rats are the traditional union picketers’ signs
writ large. The display of the rats is “speech” in the ampli‐
fied sense in which the Supreme Court has held for example
that burning the American flag to dramatize opposition to a
government policy is constitutionally protected speech. Tex‐
as v. Johnson, 491 U.S. 397 (1989). Of course particular cir‐
cumstances may justify a prohibition on otherwise protected
speech—there is for example no constitutional right to burn
an American flag owned by a person who refuses to consent
to have it burned, or to burn it in a place in which the fire is
likely to spread and cause personal injury, or property dam‐
age, to third parties.
And so the only question in this case is whether a large
inflated rubber rat, placed by a union close to a busy street in
No. 15‐1932 13
a Wisconsin town opposite the construction site of an em‐
ployer with which the union is on the outs, and fastened to
the ground with stakes, can cause harms the prospect or
possibility of which (for there is no evidence of any actual
harms during the five‐day interval before it was ordered re‐
moved) justified the town in forbidding the rat to be placed
there. (The union posted in a similar location an inflatable
rubber cat, which need not be discussed separately; it pre‐
sents no separate issue, though some cat fanciers will be dis‐
tressed to observe that the rubber cat is shown strangling a
construction worker.)
The rat was placed on a grassy field separating the
northern border of Kolosso Automotive’s property from a
service road that runs parallel to College Avenue, a busy
street parallel to the service road. As shown in the photo‐
graph below, the rat was not on or immediately adjacent to
bustling College Avenue; it was roughly 70 feet from that
street, with a median and service road separating it from the
busy street. The rat was also located for a time on the medi‐
an between College Avenue and the service road, as shown
in the second photograph below, but in that location it was
within the jurisdiction of the neighboring city of Appleton,
not that of Grand Chute.
14 No. 15‐1932
No. 15‐1932 15
The district judge thought the town justified in ordering
the rat’s removal and granted summary judgment in the
town’s favor, precipitating the union’s appeal to us. He not‐
ed that a town ordinance in effect at the time, Town of
Grand Chute Municipal Code § 535‐106(C) (2014), forbade
signs on “public rights‐of‐way.” The parties agree that a
public right‐of‐way is the portion of a street or median set
aside for public uses, such as street expansion, water mains,
sewer pipes, and utilities, and that the land on which the rat
16 No. 15‐1932
was placed is a public right‐of‐way. They also agree that
“signs” include inflatable signs, id., § 535‐108(B)(15), which
may display pictures as well as (or for that matter instead of)
words, and therefore include the rat. The ordinance has a
separate prohibition of “floating signs or other tethered in‐
flatable signs exceeding five feet,” id., § 535‐108(B)(16), but
the town has not invoked this provision to support its ban‐
ishment of the union rat.
Amended since the litigation began, the sign ordinance
now makes an exception to the prohibition for inflatable
signs less than five feet in length “on lots in the Community
Center sign district [which includes lots zoned for certain
commercial and industrial uses]. All inflatable signs must be
placed a minimum of 10 feet from any property line and
must be directly anchored to the ground with a tether hav‐
ing a maximum length of five feet. Inflatable signs require a
permit and may be in use for a maximum of five days in any
consecutive six‐month period.” Id., § 535‐106(F)(5) (2015).
The ordinance also no longer includes a blanket prohibition
of signs in public rights‐of‐way; instead, “no part of a sign
may be located in [a] public road right‐of‐way unless al‐
lowed by Town Board approval based on a finding of
unique circumstances or unusual hardship.” Id., § 535‐
106(D)(5) (2015). We don’t know what “unique circumstanc‐
es or unusual hardship” means or whether the union has
sought approval for the rat under the new ordinance. But as
the town has not suggested that the rat would fare better
under the amended ordinance, the amendments have not
rendered the case moot and so we may consider the appeal.
“The heavy burden of persuading the court that the chal‐
lenged conduct cannot reasonably be expected to recur lies
with the party asserting mootness,” and the town has not
No. 15‐1932 17
argued that the appeal is moot. Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., supra, 528 U.S. at
170.
For an ordinance to be allowed to curtail a constitutional
right, it must be grounded in a legitimate public concern.
Members of the City Council of Los Angeles v. Taxpayers for Vin‐
cent, 466 U.S. 789, 804–05 (1984). The town cites two such
concerns: aesthetics and safety. Both are spurious as applied
to the union rat. 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 pro‐
tuberant teeth!), but government cannot be allowed to sup‐
press the visual equivalent of political speech without a
more substantial aesthetic complaint; there are negative re‐
actions even to great art. The rat is not a permanent struc‐
ture, nor does it leave clutter behind that city workers must
remove. Members of the City Council of Los Angeles v. Taxpayers
for Vincent, supra, 466 U.S. at 808–10; Tucker v. City of Fairfield,
supra, 398 F.3d at 462–63. It is present only for the duration
of the protest while the union communicates its message,
and it is constantly minded by union handlers. Union mem‐
bers are bound to enjoy it whether or not they find it aes‐
thetically pleasing. No citizen of Grand Chute has, so far the
record shows, expressed revulsion at the rat.
Of course a government museum is not required to ac‐
quire or display art that the museum’s staff or the govern‐
ment board doesn’t like, even if hoi polloi would. But Grand
Chute is not a museum and the strip of lawn on which the
union placed the rat is not an outdoor museum, a botanical
garden, a state park, or any other site that might be marred
18 No. 15‐1932
by the presence of a large inflatable rubber rat. And one
must not confuse an ugly subject of art with ugly art. One of
the most famous statues in the world is the Vatican’s Hellen‐
istic statue of the Trojan priest Laocoön and his two sons be‐
ing killed by giant snakes, as narrated by Virgil in the Aeneid.
It is an ugly subject, but a beautiful sculpture. The rat, with
its protuberant front teeth, is an unlikely museum piece,
though I imagine that some people, not only members of la‐
bor unions, would think it rather striking and impressive, or
at least amusing and entertaining.
But more important, one must not confuse art with ad‐
vertising. The purpose of the inflatable union rat is not to
provide an aesthetic experience but to drive a better bargain
with an employer. It is akin to a political poster, or to the
electronic billboards in Times Square, advertising wondrous
things to buy. It is not beautiful, but it is no uglier than the
advertising displays in many shop windows.
The only conceivable justifications for banning the rat are
to prevent congestion and (relatedly) traffic accidents; the
City argues (without any evidence) that drivers on College
Avenue would be distracted by the rat, resulting in conges‐
tion (“gapers’ delay”) and even traffic accidents. That’s pure
conjecture, and implausible to boot. There is no evidence of
rat‐caused congestion or rat‐induced traffic accidents in
Grand Chute (or anywhere else, for that matter). None. And
that is no surprise. All sorts of what might be considered “at‐
tractive nuisances” line the streets and highways of America.
Think of the enormous number and variety of billboards,
some displaying pictures of scantily clad beauties. Billboards
invite drivers, and not just their passengers (often there are
no passengers), to glance at each billboard as they drive by.
No. 15‐1932 19
The entire purpose of a billboard is to induce drivers to
glance away from the road and at the billboard. Yet while
billboards are often thought unsightly, especially by the fas‐
tidious, they are not seen as dangerous. And remember that
the rat was not located on bustling College Avenue; it was
roughly 70 feet from it and not near an intersection either.
Unlike a billboard, it could not have obstructed drivers’
views, and it was on display for only a couple of hours a
day, after which its union minders deflated and removed it.
It was never on display after dark, when driving is more
dangerous than in daytime.
The presence of the union minders of the rat, who took it
down every night, casts further doubt on the bona fides of
the town’s attempt to enforce its ordinance against the un‐
ion. In confused testimony the town’s code enforcer suggest‐
ed that as long as a sign in a right of way is “attended, … it’s
viewed to be legal … as long as it meets … compliance with
all the rest of our Code” as well. The rat was attended, by its
minders; and to be sited where it would be visible from the
town’s major road was the natural location for a sign seeking
to comment (albeit without words) on issues of public inter‐
est and significance, especially since the rat was in front of
the construction site that was the object of the union’s wrath.
Of course there’s the rest of the code to be considered, pri‐
marily the permit and right‐of‐way provisions. They might
well strangle the rat display—if they were constitutional. But
a restriction on speech is permissible only “to serve a signifi‐
cant government interest,” Frisby v. Schultz, 487 U.S. 474, 481
(1988); Ovadal v. City of Madison, 416 F.3d 531, 536 (7th Cir.
2005), and the town has failed to back its alleged aesthetic
and safety concerns with evidence. There is as we’ve noted
no basis on aesthetic grounds for distinguishing between the
20 No. 15‐1932
rat and the innumerable objects in shop windows in Grand
Chute and no possible reason to limit the display of an in‐
flatable sign to five days every six months. The absence of
any governmental interest in restricting freedom of expres‐
sion, we said in Weinberg v. City of Chicago, 310 F.3d 1029,
1038–39 (7th Cir. 2002), precludes denial of First Amend‐
ment rights. “First Amendment rights demand more than
mere facial assertions. … [A] City cannot blindly invoke
safety and congestion concerns.” Id. at 1038. Especially when
they are nonexistent.
I’ll scandalize some readers, who think it improper for a
judge to stray outside the official trial record, by sharing
with them my experience with a roadside union rat. I some‐
times drive to work on a major divided highway called Mar‐
tin Luther King Drive, which runs north from Hyde Park,
where I live, south of downtown Chicago, to downtown. As
one nears the downtown on MLK Drive one sees (or rather
saw, because during the long gestation of this case the rat—
alas!—was removed, whether because the labor dispute be‐
tween union and employer was resolved or for some other
reason), on the east side of the street, a large inflated rubber
rat named Drape (short for Draper and Kramer, the employ‐
er with whom the union that put up that rat was fighting).
Every time I drove past the rat I glanced at it, as it was the
only noteworthy sight on my route. 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. And yet this rat, like its Grand Chute cousin, was
close to a major street—in fact much closer than the Grand
Chute rat was to a major street; for while the Grand Chute
No. 15‐1932 21
rat was 70 feet from the highway, my Chicago rat was only
about three feet from MLK Drive. I took a close‐up photo of
the rat, and another photo of it from across the street. Here
are the two photos:
22 No. 15‐1932
I can’t imagine that any driver seeing Drape either close
up or from across the street would have been distracted to
the point of endangerment. And there is no evidence that
No. 15‐1932 23
any driver in Grand Chute did ever become distracted,
spaced out, muddled, confused, frightened, distrait, indig‐
nant, revolted, agitated, endangered, deluded, epileptic, or
violent as a result of glimpsing an inflated rubber rat. And
remember that the Grand Chute rat is much farther from the
only busy road in the vicinity than Drape was from its busy
road.
Conclusive evidence that Grand Chute doesn’t consider
the rat a safety menace is that one of the town’s police offic‐
ers told the union that it could display the rat provided it
put it on the bed of a flatbed truck, or on a pickup truck, as
long as the vehicle was kept moving rather than parked. Yet
town officials had also objected to the height of the rat (esti‐
mated at 15 feet), and placing the rat on a truck would in‐
crease its height from the ground by several feet. Not only
that, but surely drivers are less likely to be alarmed by a sta‐
tionary rat than by one being driven alongside them—
towering, doubtless swaying on its rubber legs.
If the town thought that signs were either an aesthetic
outrage or a safety threat, it would doubtless try to enforce
the sign‐barring provisions of the ordinance. It barely tries;
enforcement is sporadic. Only one person is responsible for
enforcing the sign ordinance, and he is responsible for en‐
forcing the town’s other ordinances as well. The town tells
us that more than 80 percent of the 627 enforcement actions
for violations of the sign ordinance initiated between Janu‐
ary 2009 and July 2014 were initiated on the basis of personal
observation by the code enforcement officer, 11 percent were
initiated after a citizen complained, and the rest were initiat‐
ed after another town employee reported a violation. So far
as appears, complaints from members of the public are rare
24 No. 15‐1932
and their grounds have been nonexistent. These figures,
moreover, represent all actions for violations of the sign or‐
dinance, not just violations of the public right‐of‐way provi‐
sion. The union presented evidence, which the town has not
disputed, that many signs in public rights‐of‐way go unno‐
ticed by the code enforcer, police, or other town personnel.
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. That is fur‐
ther uncontested evidence that the ordinance serves no gov‐
ernmental purpose that would justify a curtailment of the
union’s First Amendment rights (indeed no legitimate gov‐
ernmental interest at all, as union busting is not such an in‐
terest).
In the unlikely event that a victory for the union would
lead to a proliferation of signs on public rights‐of‐way, how‐
ever, the town might well be justified in strictly enforcing
the sign ordinance even against expressive activities normal‐
ly protected by the First Amendment from government in‐
terference. Cf. Clark v. Community for Creative Non‐Violence,
468 U.S. 288, 296–97 (1984); Members of City Council of City of
Los Angeles v. Taxpayers for Vincent, supra, 466 U.S. at 807. But
the town has presented no evidence that the rat stimulated
other signage, or is likely to do so if allowed to return to its
station by Collins Avenue.
Maybe on the remand ordered by my colleagues the
town will be able to find witnesses who will testify that the
rat is ugly, an eyesore, or distracts or frightens them (re‐
member the teeth) when they glimpse it from the street. The
first type of testimony will be of doubtful force given all the
ugly signs and displays that Grand Chute tolerates. The sec‐
No. 15‐1932 25
ond will not be credible. In any event, the town had its
chance to present evidence to that effect when it moved for
summary judgment; it failed, and we should enter judgment
for the union and not prolong the agony.
Lastly I note the light shed on this case by the Supreme
Court’s decision in McCullen v. Coakley, 134 S. Ct. 2518 (2014),
invalidating a Massachusetts statute forbidding abortion pro‐
testers to approach closer than 35 feet to the entrance to an
abortion clinic. The core of the opinion can be found in two
brief passages, which I’ve strung together: “With respect to
other means of communication, an individual confronted
with an uncomfortable message can always turn the page,
change the channel, or leave the Web site. Not so on public
streets and sidewalks. There, a listener often encounters
speech he might otherwise tune out. In light of the First
Amendment’s purpose to preserve an uninhibited market‐
place of ideas in which truth will ultimately prevail, this as‐
pect of traditional public fora is a virtue, not a vice. … Peti‐
tioners wish to converse with their fellow citizens about an
important subject on the public streets and sidewalks—sites
that have hosted discussions about the issues of the day
throughout history.” Id. at 2529, 2541 (internal quotation
marks and citation omitted).
This isn’t actually true. No one wants to be buttonholed
on the sidewalk by bearers of “uncomfortable message[s].”
And whatever the situation may have been in the eighteenth
century, in the twenty‐first century strangers don’t meet on
the sidewalk to discuss “the issues of the day.” If you’re as‐
sailed on the sidewalk by an “uncomfortable message,” you
don’t stay to engage in a debate; you flee.
26 No. 15‐1932
The Court went on to acknowledge “undeniably signifi‐
cant interests in maintaining public safety on those same
streets and sidewalks, as well as in preserving access to adja‐
cent healthcare facilities.” Id. at 2541. But the relevant public
interest was not the maintenance of public safety. Few abor‐
tion protesters are violent, and police or security guards will
be present to protect persons who want to enter the clinic.
The issue was the privacy, anxiety, and embarrassment of
the clinic’s patients—interests that local government might
reasonably decide outweighed the negligible contribution
that abortion protesters make to the marketplace in ideas
and opinions. Or so I think, but the Supreme Court doesn’t
agree, and I must bow.
But here is what is important about McCullen for the pre‐
sent case. Mrs. McCullen, the plaintiff, was a soft‐spoken
grandmother. But it took only two days after the Supreme
Court’s decision for the hard‐core abortion protesters to ex‐
ploit the decision:
For the first time in seven years, the Saturday
morning antiabortion protest in front of Planned
Parenthood on Commonwealth Avenue in the Back
Bay pushed past the arcing yellow line that once
marked protected territory: the 35‐foot buffer zone.
Activists chanted, prayed, and sang during a non‐
violent six‐hour protest that occasionally erupted
into vitriol and shouting.
“Please don’t kill your baby! You can celebrate a
birthday next year!” protesters shouted at young
women entering the clinic. They waved signs im‐
ploring passersby to say no to abortions, some de‐
picting infants nestled serenely in their mothers’
No. 15‐1932 27
arms, another showing a bloody baby clutched by
hands bearing the marks of stigmata.
At its height, the protest drew about 70 people—
three times more than the average Saturday morn‐
ing crowd, typically the largest gathering of the
week—a turnout inspired by Thursday’s US Su‐
preme Court ruling that struck down the Massa‐
chusetts law that since 2007 had kept them outside
the yellow line.
Evan Allen and Claire McNeill, “Abortion Battle Spills
Across Line at Boston Clinic: Territory No Longer Protected
as Buffer Zone Erased,” Boston Globe, June 29, 2014, www.
bostonglobe.com/metro/2014/06/28/protesters‐gather‐planne
d‐parenthood‐clinic‐first‐saturday‐after‐supreme‐court‐rulin
g‐against‐buffer‐zone/TkOlnXO5G6HSFlfZ9XB3NK/story.ht
ml (visited August 19, 2016).
There is no doubt that with the possible exception of the
shouting, the virulent protest described in the Boston Globe
article is constitutionally protected speech by virtue of the
McCullen decision, despite the stress that such speech must
impose on women seeking to enter an abortion clinic to ob‐
tain an abortion. The giant rat in this case no doubt causes
distress to the executives of the car dealership that the rat is
picketing, though less distress than that of the women seek‐
ing to enter the abortion clinic through a mob of abortion
protesters. Yet after McCullen it is clear that both forms of
rude speech are protected by the First Amendment.
We should reverse, direct the district court to enter
judgment in favor of the union, and be done with this case.