BNA Daily Labor Report: Giant Rat Is Free Speech

February 9, 2009: A Lawrence Township, N.J., ordinance that was applied to prohibit a union from displaying a 10-foot tall balloon in the shape of a rat as part of a labor protest on a public sidewalk outside a construction site violates the First Amendment right to free speech and is overbroad, the New Jersey Supreme Court ruled unanimously Feb. 5 ( State v. DeAngelo, N.J., No. A-73-07, 2/5/09).

Overturning the conviction of Wayne DeAngelo, an assistant business manager for International Brotherhood of Electrical Workers Local 269, the supreme court found that the sign ordinance is content-based, because it favors commercial over noncommercial speech and allows signs displayed only by certain persons or entities and only for certain purposes.

Applying the strict scrutiny standard of review applicable to content-based restrictions, the appeals court found that the sign ordinance “does not fairly advance any compelling governmental interests” and is not “narrowly tailored” to target the source of the harm it seeks to prevent. Justice John E. Wallace, writing for the supreme court, also found that the ordinance is overly broad because it virtually eliminates “an entire medium of expression without a readily available alternative.”

Chief Justice Stuart Rabner and Justices Virginia A. Long, Jaynee LaVecchia, Barry T. Albin, Roberto A. Rivera-Soto, and Helen E. Hoens joined in the opinion.

IBEW Protested Use of Nonunion Contractor

On April 5, 2005, IBEW Local 269 engaged in handbilling on the public sidewalk outside the site of a former warehouse that was being retrofitted to house a Gold's Gym. The union was protesting Gold's use of a nonunion electrical contractor that was paying its workers less than the Local 269 area standards for wages and benefits. The union also displayed a 10-foot inflated rat with no writing on it. Wallace found in the supreme court decision that a rat is “a symbol of labor unrest.”

Gold's Gym called the township authorities, and a police officer who arrived on the scene told the union leaders to remove the rat balloon because it violated a local ordinance. The union participants initially removed the rat balloon, but the gym again called the police 45 minutes later to report that the rat was back. The police officer issued a summons to DeAngelo, an assistant business manager for Local 269 who was the senior union official on the scene.

The township sign ordinance prohibits: “Banners, pennants, streamers, pinwheels, or similar devices; vehicle signs; portable signs, balloon signs or other inflated signs (excepting grand opening signs); and searchlights (excepting grand opening signs), displayed for the purpose of attracting the attention of pedestrians and motorists.” But the ordinance includes a number of exceptions for temporary signs identifying contractors and developers at construction sites; announcing grand openings, business relocations, and real estate sales; displaying political messages; advertising public functions and fundraising events; and announcing yard and garage sales.

A judge in the Lawrence Township Municipal Court conducted a trial, found DeAngelo guilty of violating the sign ordinance, fined him $100, and charged him $30 for court costs. He appealed to the Mercer County Superior Court, which conducted a trial de novo and again found DeAngelo guilty and imposed the same penalty.

The New Jersey Superior Court's Appellate Division affirmed the conviction, ruling that the ordinance is not preempted by the National Labor Relations Act, does not violate the First Amendment right to free speech, is not void for vagueness, is a content-neutral restriction, and is not selectively enforced against unions (930 A.2d 1236, 182 LRRM 2743 (N.J. Super. Ct. App. Div. 2007); 179 DLR AA-1, 9/17/07). One judge dissented on the free speech issue, saying the ordinance is a content-based restriction.

DeAngelo, who is still an assistant business manager for the union, recently was elected to serve in the New Jersey General Assembly.

Speech on Public Issues Entitled to Most Protection

Wallace said the U.S. Supreme Court has recognized that the First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.” He found that when speech involves public issues, government must allow the widest room for discussion and the narrowest range for its restriction.

Governments “may impose stricter regulations on commercial speech than on non-commercial speech,” Wallace said. He explained that different limits apply to protected speech depending on the forum where it takes place. “Public streets, parks, and sidewalks are traditionally public forums” where the government has a “very limited” ability to restrict expressive activity, he said.

The U.S. Supreme Court has held, Wallace said, in a traditional public forum, such as the sidewalk in this case, the government may enforce a content-based restriction only if it is necessary to serve a compelling government interest and it is narrowly drawn to achieve that end. He also found that the government may enforce regulations regarding the time, place, and manner of expression that are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

Laws that “distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based,” Wallace said. He pointed out that a plurality of the U.S. Supreme Court in Metromedia Inc. v. San Diego, 453 U.S. 490, 49 USLW 4925 (1981), “found that regulations banning non-commercial advertising while permitting significant exceptions for commercial advertising were content-based, and invalidated the ordinance.” Wallace also found that “[a] number of federal and state courts have applied Metromedia to invalidate, in whole or in part, laws or regulations that exempt ‘grand opening' displays from more general prohibitions or restrictions covering non-commercial displays.”

Town's Sign Ordinance Is Content-Based

The Lawrence ordinance, which “prohibits a union from displaying a rat balloon, while at the same time authorizing a similar display as part of a grand opening, is content-based,” Wallace said. He found that whether a sign is authorized under the ordinance is determined “only by reference to the person or entity displaying the sign” and “the purpose for which the sign is displayed.” He also found that the town ordinance, like the regulations in Metromedia, favors commercial over noncommercial speech.

The stated goals of the sign ordinance “are to maintain an aesthetic environment, to improve pedestrian and vehicular safety, and to minimize the adverse effects of signs on property,” Wallace said. He found “[t]here is no evidence to suggest that a rat balloon is significantly more harmful to aesthetics or safety than a similar item being displayed as an advertisement or commercial logo used in a seven-day grand opening promotion.” There also is no evidence that the ordinance is necessary to serve a compelling government interest and that it is narrowly tailored to achieve that end, Wallace said.

The U.S. Supreme Court has held that a statute is facially invalid under the First Amendment if it is prohibits a substantial amount of protected speech, Wallace said. He cited Ladue v. Gilleo, 512 U.S. 43, 62 USLW 4477 (1994), in which the court held that an ordinance that severely restricted homeowners from displaying signs on their property but allowed businesses, religious groups, and nonprofit organizations to display a broad range of signs on their property was unconstitutionally overbroad. The court found that the Ladue ordinance “almost completely foreclosed a venerable means of communication that is both unique and important.”

Like the law in Ladue, the Lawrence ordinance is overly broad, Wallace said. He found that the “use of non-verbal, eye-catching symbolic speech” such as a rat balloon “represents a form of expression designed to reach a large number of people.” By forbidding signs except for certain limited purposes, the ordinance virtually eliminates “an entire medium of expression without a readily available alternative,” Wallace said.

Andrew L. Watson of Pellettieri, Rabstein & Altman in Princeton, N.J., represented DeAngelo. John V. Dember of Nerwinski, Dember & Fox in Lawrenceville, N.J., represented New Jersey.

By Susan J. McGolrick

Text of the decision appears in Section E and may be accessed here

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