Civil Liberties

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.