Municipalities and Employers Deflated by ‘Inflatable Rat’ Case

April 20, 2009 New Jersey Law Journal

Reprinted with permission from the APRIL 20, 2009 edition of New Jersey Law Journal. © 2009 Incisive Media US Properties, LLC. All rights reserved. Further duplication without permission is prohibited.

Inflatable balloons in the shape of rats, skunks and other pests used by unions during labor disputes cannot be easily deflated, according to the New Jersey Supreme Court’s recent decision in State v. DeAngelo (A-73-07). The Court held that a municipal “sign” ordinance that banned all inflatable balloon signs, other than grand opening signs, was unconstitutional because it violated the First Amendment right to free speech and was overbroad.

This case arose after a summons was issued to Wayne DeAngelo, a union official with the International Brotherhood of Electrical Workers, Local 269 (IBEW), for displaying a 10-foot rat balloon on a sidewalk in front of a Gold’s Gym in Lawrence Township. DeAngelo was displaying the rat to draw attention to a labor dispute that IBEW was having with a contractor working at the gym. Unions frequently use the rat as a symbol of unfair labor practices and as an image associated with those who “cross the picket line” or otherwise desert the union cause. After Gold’s Gym complained to the police, the police required IBEW to take the rat down. IBEW initially complied, however, after the police left, DeAngelo re-inflated the rat. When the police returned and discovered the rat had been re-inflated, the officer issued DeAngelo a summons charging him with violating a municipal ordinance that prohibited the use of “balloon signs or other inflated signs.” DeAngelo challenged the summons on the basis that the ordinance was unconstitutional. The ordinance provided that

[a]ll signs not permitted by this Ordinance are hereby prohibited with the following signs specifically prohibited: . . . banners, pennants, streamers, pinwheels, or similar devices; vehicle signs; portable signs, balloon signs or other inflated signs (excepting grand opening signs); and search-lights (excepting grand opening signs), displayed for the purpose of attracting the attention of pedestrians and motorists; unless otherwise excepted.

Both the municipal court and law division disagreed and ruled that the ordinance was valid. DeAngelo then appealed this decision to the Appellate Division, where he argued that the ordinance was: (i) ambiguous, (ii) pre-empted by the National Labor Relations Act (NLRA), (iii) in violation of his right to free speech under the First Amendment, (iv) “void for vagueness” because it did not define the term “sign” and (v) selectively enforced against labor unions. In addressing the free speech issues, the Appellate Division found that the ordinance was “content neutral,” with the purpose of enhancing aesthetics and protecting public health and safety, and that it did not entirely prevent IBEW’s message, since it could still be conveyed by handbilling or conversation with individual members of the public. Thus, the Appellate Division upheld the ordinance.

Upon review, New Jersey’s Supreme Court reversed the Appellate Division’s decision and set aside DeAngelo’s conviction. In doing so, the Court found that the municipal ordinance sought to impose a content-based restriction on the display of inflatable signs on a sidewalk, a traditional public forum. The Court determined that the ordinance was content-based because it favored commercial over noncommercial speech, and because it only authorized signs displayed by certain entities and for certain purposes.

Under the First Amendment, the government is prohibited from enforcing content- based restrictions in public forums, such as a sidewalk, unless it can show that the restriction served a compelling governmental interest and was narrowly drawn to achieve that end. Upon applying this test, the Court concluded that the ordinance was invalid because there was no evidence to suggest that the rat or other inflatable signs displayed for noncommercial reasons were significantly more harmful to aesthetics or safety than signs displayed for commercial reasons, such as grand openings.

The Court’s decision relied on the U.S. Supreme Court’s rationale in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). In Metromedia, a plurality of the Supreme Court found that the city of San Diego’s sign ordinance was content-based because it banned noncommercial speech on billboards but permitted exceptions for commercial speech. There, the sign ordinance was similar to the Lawrence Township ordinance, and it generally provided, albeit with a number of exceptions, that all signs that were “outdoor advertising display signs,” and those that were not merely identifying the name of the owner or occupant of the premises, or not in some way located on, or connected to, the premises of the place where goods or services being advertised were made or served, were prohibited. Even though there were a significant number of exceptions, the Court found such language had the effect of banning a substantial amount of noncommercial speech.

Upon concluding that the ordinance should be invalidated, the decision noted that because other “commercial speech cases” have consistently accorded noncommercial speech a greater degree of protection than commercial speech, the city’s decision to ban one and not the other inverted the judgment of the Court. Further, the Metromedia plurality stated that it could not find any explanation for why noncommercial speech in the same place as commercial speech would be “more threatening to safe driving or would detract more from the beauty of the city.”

The New Jersey Supreme Court’s decision also followed the logic of the dissenting judge of the Appellate Division, which highlighted the absurdity of the ordinance. Specifically, Appellate Judge Jack Sabatino pointed out that the application of the ordinance permitted an inflatable balloon of a rat for a Disney store grand opening to promote its popular animated Disney character “Ratatouille,” but prohibited IBEW’s rat. Further, he noted that “the temporary nature of a grand opening provides no useful distinction,” and that it was “not readily apparent how the rat balloon involved in the case could have been significantly more harmful to traffic, safety or aesthetics than a large balloon with an eye-catching ad or a commercial logo.” The New Jersey Supreme Court agreed with this rationale and found no evidence that the ordinance was necessary to serve a compelling government interest or that it was narrowly drawn to achieve that end.

In addition, the Court held that the ordinance was invalid because it was overbroad. Under the First Amendment, an ordinance will be deemed overbroad if it almost completely forecloses a unique and important means of communication without offering a readily available alternative. The Court concluded that this test was met in this case because the ordinance virtually eliminated all signs except for grand opening signs, and it did not offer any alternative (relying on the rationale in City of Ladue v. Gilleo, 512 U.S. 43 (1994) (invalidating a city ordinance as overbroad because it permitted certain signs at businesses and churches that were not allowed at residences)).

While this decision may be deflating at first blush, employers, municipalities and others affected by this decision should note that this decision does not mean that all displays of the rat or similar pests are lawful. In fact, depending on the placement or position of the balloon, or the timing and context of its positioning, the display may be illegal. Specifically, while unions may have a limited right to display an inflatable pest, or to picket or handbill under certain circumstances, if such displays physically stop people from entering a store or a work site, or if the accompanying labor dispute involves disparagement of the business’ product or violence, a business may be able to obtain an injunction to restrain such conduct through the National Labor Relations Board or state court.

Employers should note that this decision only strikes down a municipal ordinance prohibiting such signs on First Amendment grounds — it does not, for example, mean that the display of the rat or other pests constitutes lawful picketing under the NLRA, or that the accompanying labor protest is lawful under state law. However, whenever such activity occurs, employers should exercise caution, especially when making decisions that could have an impact on union speech, the bargaining rights of unions or other union rights. Finally, municipalities should review their ordinances pertaining to signs, traffic, safety and related matters to ensure that they do not impinge on First Amendment rights or are otherwise overbroad. Where such ordinances violate the rules from this case, they should be revised immediately.