297 F. Supp. 3d 850
E.D. Wis.2018Background
- In March–April 2014 Construction & Gen. Laborers' Local Union No. 330 placed large inflatable figures (a ~12-foot rat and a "fat cat") staked in the public right-of-way to protest a local business using nonunion labor.
- Town of Grand Chute Code Enforcement Officer ordered removal, citing the Town's sign ordinance banning non-traffic signs in public rights-of-way; the Union deflated the inflatables and sued under 42 U.S.C. § 1983 claiming First and Fourteenth Amendment violations.
- District court denied a preliminary injunction and later granted summary judgment for the Town, holding the ban content-neutral and enforcement not content-based; judgment was appealed.
- Seventh Circuit vacated and remanded for the district court to determine mootness and whether enforcement was selectively content-based; the case was held not moot and remanded for trial on selective-enforcement and as-applied challenges, and the Union amended to challenge the 2015 ordinance.
- After trial, the district court found the Town did not enforce the ordinance based on content, the 2014 ban on signs in the public right-of-way was a valid time/place/manner restriction (narrowly tailored, significant interest, alternative channels), and the 2015 ordinance likewise constitutional as applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial challenge: ordinance content neutrality | Ordinance (or parts) vested unbridled discretion; some provisions may permit content-based exceptions | Ordinance is a comprehensive, content-neutral ban on signs in public rights-of-way (permissible on public property) | Court held ban content-neutral and facial challenge failed |
| As-applied / selective enforcement | Town enforced ban against Union's rat/cat because of message; pointed to allegedly allowed firefighter signs and uneven removal deadlines | Town enforced based on location/physical attributes (public right-of-way, affixed vs attended signs); Code Enforcement Officer acted without regard to content | Court found no content-based selective enforcement; enforcement decisions were content neutral |
| Unbridled discretion in 2015 Ordinance | §535-106D(5) (allowing Town Board exceptions) gives unbridled discretion to allow signs in right-of-way | Inflatable signs are separately regulated by §535-106F(5) and the Board-exception applies to permanent signs; inflatables are categorically barred from being affixed in right-of-way | Court held 2015 provisions do not vest unbridled discretion over Union’s inflatables; challenge failed |
| Narrow tailoring / alternative channels | Prohibiting inflatables in right-of-way prevents Union from communicating effectively; alternatives (moving truck, costumes, handheld signs) are not adequate | Town has significant interests in safety and aesthetics; total ban on signs in public right-of-way is a permissible way to address visual clutter and safety; alternatives exist | Court held regulation narrowly tailored to substantial interests and left ample alternative channels |
Key Cases Cited
- City of Ladue v. Gilleo, 512 U.S. 43 (recognizing homeowners' signs as protected expression but distinguishing public-rights-of-way restrictions)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based sign regulations trigger strict scrutiny)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner test: content-neutral, narrowly tailored to significant interest, ample alternatives)
- Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (city may ban private signs on public property to address visual clutter)
- City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988) (facial challenge to licensing ordinance that vests unbridled discretion)
- Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981) (aesthetic concerns can justify sign regulation)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (regulations that allow arbitrary application are problematic under First Amendment)
- Ovadal v. City of Madison, 416 F.3d 531 (7th Cir. 2005) (government may not suppress speech due to hostile reactions from others)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) (invalidating unbridled discretion in permit schemes)