Please ensure Javascript is enabled for purposes of website accessibility

Inflatable rat at center of free speech federal lawsuit (UPDATE)

By: Beth Kevit, [email protected]//April 23, 2014//

Inflatable rat at center of free speech federal lawsuit (UPDATE)

By: Beth Kevit, [email protected]//April 23, 2014//

Listen to this article
(Photo courtesy of Local 330 of the Construction and General Laborers’ Union)
An inflated rat is tethered to a median April 2 in the public right of way in Grand Chute. Local 330 of the Construction and General Laborers’ Union is suing the town after being told to deflate the rat while protesting at a construction site. (Photo submitted into court documents by Local 330 of the Construction and General Laborers’ Union)

A local dispute over a construction and laborers union’s protest methods has led to a federal lawsuit.

The case stems from Menasha-based Local 330 of the Construction and General Laborers’ Union’s use of a large, inflated rat as a way to protest nonunion masonry contractor Pahlow Masonry LLC’s involvement on a car dealership construction site in Grand Chute. The union claimed it had a right to display the rodent, as well as an inflated cat strangling a construction worker, near the site in late March and early April.

But Greg Peterson, Grand Chute’s chief of police, said officers from his department forced the union to deflate the rat and cat because they were safety hazards.

Local 330 sued Grand Chute in federal court Friday, claiming the town violated the union’s First Amendment right to free speech, among other things. Local 330 is seeking an unspecified amount of damages and a temporary injunction that would let the union re-inflate the rat.

Peterson said the town had not yet been served a copy of the lawsuit, so he could not comment on the specific claims. But he maintained the Police Department tried to work with the union to ensure a peaceful, safe protest.

Nathan Eisenberg, an attorney with Milwaukee-based The Previant Law Firm SC, who represents the union, said his clients’ right to use the rat to protest contractors that pay less-than-standard wages is entrenched firmly in case law and the U.S. Constitution.

“The labor rat is an important symbol in labor disputes about workers not being treated fairly,” he said.

Kelly Buss, Local 330’s president, declined to comment.

According to court documents, the union claims Shiocton-based Pahlow, which was hired to help build the dealership, offers low pay that “erodes the standards that the union maintains for work in the area.”

But Doug Pahlow, owner of Pahlow Masonry, said the hourly wages, including benefits, that he pays employees average between $30 and $40, which is higher than the state average. According to the U.S. Department of Labor’s Bureau of Labor Statistics, the average hourly wage for cement masons in Wisconsin is $21.80.

Local 330 pickets Pahlow Masonry a few times every year, Pahlow said, including once at a small dental clinic in a residential area. The rat scared children in the area, he said, and neighbors complained.

“I don’t think the public perceives it the way they want it to be perceived,” he said, “and I think people think it looks childish.”

But the rat has a long history at union protests, and in its complaint, Local 330 cited Tucker v. City of Fairfield, an Ohio case stemming from nearly identical circumstances to those in Grand Chute. According to that case, the city blocked a union from displaying an inflated rat as part of a protest in front of a car dealership. The city cited the section of the municipal code prohibiting structures in the public right of way.

The 6th U.S. Circuit Court of Appeals ruled the rat is a form of expression protected by the First Amendment.

Wisconsin is in the 7th Circuit, meaning a Wisconsin judge can consider the Tucker decision but is not bound to make a similar ruling.

Usually, Eisenberg said, municipalities back off when he sends a letter citing the Tucker case.

But, according to court records, Grand Chute is not backing down. A letter attributed to Charles Koehler, an attorney with Appleton-based Herrling Clark Law Firm Ltd., who is identified as an attorney for the town, the inflated rat and cat violate a local ordinance and state statute that govern signs in the public right of way. The restriction does not violate the union’s First Amendment rights, according to the letter, because it is content-neutral.

To be considered content-neutral, meaning a restriction on speech is not a reaction to the sentiment of a message, the actions of a government must be narrowly tailored to achieve a specific goal and must be based on an objection to the time, place or manner in which someone is attempting to disseminate a message, according to court documents. Furthermore, the government must maintain an alternative way for the dissemination of the message.

Koehler did not immediately respond to a request for comment Wednesday afternoon.

According to the letter attributed to him, Grand Chute’s narrowly tailored interest is to preserve traffic flow, safety and aesthetics in a specific place, and the town allowed for an alternative by not demanding picketers put down their hand-held signs.

But, according to Local 330’s request for a temporary injunction, a Grand Chute police sergeant told Local 330 an alternative could be tethering the rat balloon to a flatbed truck. That, according to the union’s request “rings particularly hollow.”

“A mobile rat creates a mobile visual impairment for drivers,” according to the request, “and would need to be driven through traffic and intersections.”


What kind of stories do you want to read more of?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests