Court Agrees With Labor Unions: Giant Inflatable Rats Are Protected Speech

In case you were wondering, displaying giant
inflateable rats
is protected by the First Amendment. Apparently a balloon
rodent known as Scabby the Rat has been a labor union protest
symbol since the ’90s. But New York-based Microtech Contracting
felt the display of Scabby by unions representing some of its
workers was a violation of the pair’s collective bargaining
agreement.

Microtech challenged the Mason Tenders District Council of
Greater New York and the Asbestos, Lead, and Hazardous Waste
Laborers’ Local 78 over the rat in federal court. District Judge
Joseph Bianco sided with the unions—the latest in a series of legal
victories for the protected speech status of giant inflatable
rats.

From the National Constitution Center’s blog: 

Since Scabby’s humble birth in Chicago years ago in 1990, the
rat with the union label has become a symbol of protest at
different locations across America. Anyone can buy a rat, ranging
from 6 feet to 25 feet tall, from
Plainfield, Illinois-based Big Sky Balloons and
Searchlights. The typical rat runs from $2,000 to $8,000.

But how and where these rats have been used have triggered three
recent court challenges, with the rats coming out on top in debates
over the First Amendment and contracts.

The most recent pro-rodent decision came down in
the Microtech case in New York. Federal District
Judge Joseph Bianco ruled that the rat didn’t violate the
collective bargaining agreement in force, and the court lacked
jurisdiction.

Specifically, Bianco said the rat didn’t violate the union’s
no-strike clause, “[T]he defendants’ peaceful use of a stationary,
inflatable rat to publicize a labor protest is protected by the
First Amendment.”

Using the rat was a form of general speech, Bianco said, and
banning the rat was tantamount to barring any general speech
harmful to the plaintiff’s business image.

Back in 2011, giant rats won a key ruling from the National
Labor Relations Board when it held that deploying the rodent
protest balloon wasn’t same as using a picket sign at a protest
site.

Under the National Labor Relations Act, unions can’t picket or
engage in “secondary activity” or “secondary boycotts” that lead
neutral parties to “cease doing business with employers.”

In a 2009 case, the New Jersey Supreme Court
ruled that a Lawrence Township ban on inflatable
signs unless used for store openings was unconstitutional
after the city tried to fine the International Brotherhood of
Electrical Workers Local 269 for displaying Scabby the Rat.