Legal News

Scabby the Rat Wins First Amendment Battle

Today the New Jersey Supreme Court sided with Scabby the Rat in a battle over First Amendment rights in Lawrence Township, New Jersey. The court ruled that a local ordinance enforced against a labor protester displaying the ten foot tall rat balloon was an unconstitutional restriction of speech. The case raised the age old question of when and how local governments can restrict speech in a public forum.

As cnn reports, in April of 2005, members of the International Brotherhood of Electrical Workers marched outside a Gold's Gym in Lawrence Township, over a labor dispute with a contractor working on the site. Scabby was inflated on a sidewalk as part of the protest. Police first made the protesters deflate Scabby, then issued a summons to IBEW member Wayne DeAngelo after Scabby was reinflated.

Scabby the Rat, produced by Big Sky Balloons and Searchlights, is used in labor protests nationwide. "He's quiet. He doesn't say much," the Union News reports DeAngelo as saying about Scabby. "But he really gets our message out. Visibility is important. Without the rat, we're wasting our time."

The case illustrates a common question in municipalities across the country: to what extent can laws be written that restrict how people express themselves in public fora such as sidewalks, streets and parks? The court's opinion shows that a public forum speech restriction connected to the speech's content will much more likely violate the first amendment.

The ordinance at issue banned "balloon signs or other inflated signs (except grand opening signs) ... displayed for the purpose of attracting the attention of pedestrians and
motorists... ." According to the court, allowing grand opening balloon signs but forbidding other balloon signs made the ordinance content specific. If the rule is content based, the government must prove the rule is narrowly tailored to satisfy a compelling interest.

Here, the town's interests in its aesthetic appeal and traffic safety were not enough. As often happens at this level of scrutiny, where "core" political speech is restricted based on content, the law was held to violate the first amendment. If the ordinance is revised to make it content neutral and to properly limit the time, place and manner of use of balloon signs, it could come into compliance with the First Amendment.

But for today, it's good news for Scabby. Since his deflation in Lawrence Township, he has been restricted to strictly out of town gigs. "He can't get blown up in his own home town," DeAngelo reportedly said. "It's sad."

Not anymore. Scabby the Rat can, at least for now, legally return to the sidewalks of Lawrence Township.

• The New Jersey Supreme Court Opinion [pdf]
• Big Sky Balloons: Rat Pack & Union Balloons
• First Amendment ? Religion and Expression (FindLaw)
• Government Restraint of Content of Expression (FindLaw)
• Hilden on the Supreme Court's Bong Hits 4 Jesus Case (FindLaw's Writ)

Full post as published by FindLaw's Common Law on February 05, 2009 (boomark / email).