[This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter]
“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.”
Those are the words of the New Jersey Supreme Court in State v. DeAngelo, a decision handed down last month in which the high court ruled that an inflatable 10-foot-tall rat often used by unions as a protest symbol was protected under the First Amendment from an overly broad local township ordinance.
In April 2005, members of a local electricians union were protesting outside a local business that had been engaged in business with a non-union contractor. As part of its protest, the union displayed a 10-foot-tall inflatable rat-shaped balloon on the sidewalk. A union official in charge of the demonstration was cited for violating a Lawrence Township sign ordinance prohibiting “balloon signs or other inflated signs (excepting grand opening signs) … displayed for the purpose of attracting the attention of pedestrians and motorists.”
Lawrence Township defended the ordinance by arguing that it enhanced the town’s aesthetics and helped promote safety. Further, because it regulated all signs, except for grand opening signs, the ordinance was content-neutral.
On appeal, the state Supreme Court stressed that government attempts to regulate speech on public issue picketing is subject to especially careful scrutiny and the ability to restrict expressive activity is very limited. The court reasoned that the Lawrence Township ordinance was content-based (as opposed to content-neutral) as it favored commercial speech over non-commercial speech. Furthermore, the court ruled that the ordinance did not fairly advance any compelling governmental interests and was not narrowly tailored.
Ultimately, the court held that the zoning ordinance violated the union’s constitutional right to free speech and, therefore, was unconstitutional.
Now before we all rush to break out the pumps in order to inflate our 10-foot-tall balloon rats in protest of non-union employers, it must be stressed that the decision only considered whether suppression of such infamous protest symbols violated the First Amendment under the specific language of one town’s zoning ordinance. Had the Lawrence Township zoning ordinance been more evenly worded so as not to provide advantages to commercial speech over non-commercial speech, the court might have denied the union’s appeal.
Additionally, depending on the circumstances, a union’s use of an inflatable animal such as a rat, pig or skunk may violate the National Labor Relations Act.
(You can all put away your pumps now…)
-- Eric B. Meyer
Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Mr. Meyer via e-mail and follow him on Twitter.
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