According to these news reports, yesterday the New Jersey Supreme Court ruled that a New Jersey city could not fine a local labor union or its use of a large, inflatable rat to protest non-union work pursuant to city ordinance banning inflatable displays except for store grand openings. As reported by the AP:
The super-sized rat, sitting on its hind legs and bearing fangs, is a national symbol used by organized labor to signal a labor dispute. It had been blown up and displayed at a 2005 labor event in Lawrence Township until police enforced a law that bans banners, streamers and inflatable signs, except those announcing grand openings.
A labor official was fined $100 plus $33 court costs.
The event was staged by the union to protest low wages being paid to electricians by an out-of-area contractor.
An appeals court panel ruled in 2007 that the town could ban the big black rat and affirmed the labor official’s fines. The panel found the ordinance was content-neutral and was aimed at enhancing aesthetics and protecting public health and safety.
The union appealed. Its lawyers argued the law violates their right to free expression and suppresses protest.
The township claimed the union’s use of the rat was a form of commercial speech, less deserving of First Amendment protections.
The state Supreme Court found that the law wasn’t neutral, and therefore was unconstitutional. It said an ordinance “that prohibits a union from displaying a rat balloon, while at the same time authorizing a similar display as part of a grand opening, is content-based.”
Township attorney John Dember said, “(The court) did find that we need to do some tweaking because of the freedom of expression limitation, which we’ll undertake immediately to correct.”
The Court, in its opinion, found that the ordinance to be a content-based restriction (because the balloons permitted by the ordinance were for store openings vs. ballons for other purposes). The rule didn’t meet strict scrutiny, and so the fines were reversed, and the city has to “tweak” the ordinance.
It appears from the opinion that the inflatable rat fails not only because it’s inflatable (a specific prohibition in the ordinance) but also because it is a “sign” for which the union did not get a permit and that was not “excepted” from permit requirements because it wasn’t a yard sign, grand opening sign, political sign, window sign, etc. But because Gold’s gym (the venue that was being protested for using non-union work) could have put up a “grand opening balloon” at the same site and not be subject to fine or licensing, it does seem to be a content-based restriction that probably shouldn’t survive strict scrutiny.
I’m curious, though–if the ordinance was focused solely on the inflatable nature of the display, is there really a constitutional right to inflatable ballons? Is that a medium that is somehow different from, say, a 10-foot sign, or a statue made out of crepe paper? I suppose balloons are preferrable because they’re light, easy to set up, temporary, and easier to move than any of the aforementioned options. But if the union could put up a sign or statue instead of a balloon (under the idea that balloons may be more dangerous to motor vehicles, or just plain uglier on their streets perhaps), would the result be the same? Even if Gold’s Gym was permitted to put up the balloon for a grand opening for less than a month? Would the result have been different if the petitioners weren’t a union, and/or the case was not in New Jersey?
This case was probably rightly decided, but it will be interesting to see how the city will “tweak” the ordinance to avoid content-based restrictions. If it simply bans all balloons (or requires unreasonable permits for them), then it may run afoul of the overbreadth concerns the Court had. One to gnaw on.