834 F.3d 745
7th Cir.2016Background
- Union displayed large inflatable rat and cat on public right-of-way/median during a labor dispute in Grand Chute, WI; items were staked to the ground.
- Town ordinance (pre-amendment) banned private signs in the public way and defined “signs” to include structures and inflatables; picket signs/sandwich boards allowed but staked inflatables treated as structures and forbidden.
- Police told union to remove inflatables; union complied and sued under 42 U.S.C. § 1983 claiming First Amendment violations; district court denied preliminary injunction and later granted summary judgment for the Town.
- Court of Appeals panel vacated judgment and remanded, finding potential mootness and changed ordinance (post-litigation amendment) required district court to reassess justiciability and consider enforcement practices.
- Appellate opinion addressed merits guidance: city may ban private signs on public way (Taxpayers for Vincent), but selective enforcement/content discrimination claims require factual findings; community non-violence precedent allows banning certain conduct components of symbolic speech if content-neutral.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness / capable of repetition yet evading review | Union: dispute likely to recur (will use rat again); no damages sought so case should remain live | Town: underlying dispute ended when project completed; ordinance amended | Remanded: district court must assess probability of recurrence and whether case is moot given lack of damages and ordinance change |
| Facial validity of sign ban on public way | Union: inflatables are protected symbolic/political speech; ordinance unconstitutionally restricts expression | Town: Taxpayers for Vincent and Community for Creative Non‑Violence allow comprehensive, content‑neutral sign bans and regulation of symbolic conduct | Court: noted precedents support content‑neutral bans but declined to resolve merits pending justiciability; provided guidance that content‑neutral, comprehensive rules can be valid |
| Selective enforcement / content discrimination | Union: Town allowed some signs and selectively enforced against union, showing content discrimination | Town: enforcement was not motivated by invidious reasons; some examples outside jurisdiction or not on public way | Remanded: district court must make factual findings on enforcement practices; content discrimination claim cannot be dismissed without record findings |
| Interim enforcement practices / unequal treatment (removal timing) | Union: Town gave others 30 days to cure but forced immediate removal of inflatables | Town: official testimony said no 30‑day grace; printed notices inconsistent | Remanded: district court must determine actual enforcement practice and whether differential treatment occurred |
Key Cases Cited
- Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (municipality may ban private signs from public ways)
- Clark v. Community for Creative Non‑Violence, 468 U.S. 288 (1984) (government may regulate conduct component of symbolic speech if content‑neutral)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (limits on permitting discretion to prevent viewpoint discrimination)
- Niemotko v. Maryland, 340 U.S. 268 (1951) (unfettered licensing discretion can violate First Amendment)
- United States v. Stevens, 559 U.S. 460 (2010) (restrictions on categories of speech implicate First Amendment scrutiny)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based sign regulations trigger strict scrutiny)
- Texas v. Johnson, 491 U.S. 397 (1989) (symbolic expressive conduct is protected speech)
- McCullen v. Coakley, 571 U.S. 494 (2014) (public‑forum protections and scrutiny of content‑neutral time, place, manner restrictions)