Construction and General Laborers' Local Union No. 330 and Kelly Buss, Plaintiffs-Appellants,
Town of Grand Chute, Wisconsin, Defendant-Appellee.
November 6, 2015
from the United States District Court for the Eastern
District of Wisconsin. No. 14-C-455-William C. Griesbach,
WOOD, Chief Judge, and POSNER and Easterbrook, Circuit
Easterbrook, Circuit Judge.
This case is about rats. Giant, inflatable rats, which unions
use to demonstrate their unhappiness with employers that do
not pay union-scale wages. Cats too-inflatable fat cats,
wearing business suits and pinkie rings, strangling workers.
Here is what they look like, as deployed during a labor
dispute in the Town of Grand Chute, Wisconsin:
pictures show, the rat and the cat are staked to the ground,
to prevent the wind from blowing them away. Those stakes led
to this litigation.
Chute forbids private signs on the public way. Municipal Code
§535-106C. Another section defines signs to mean
"[a]ny structure, part thereof, or device attached
there-to" that conveys a message. Municipal Code
§535-105. Picket signs and sandwich boards are lawful
under this definition, and the Town did not interfere with
the Union's use of them. But the Union inflated its rat
and cat in the median of a highway, and because they were
staked to the ground the Town treated them as structures.
picketers had held them down by ropes, there would not have
been a problem under the Town's rules. Likewise if they
had been inflated with helium and floated six inches above
the ground. The Town suggested that the protesters mount the
cat and rat on a flatbed truck, which would not be a
structure; the Union declined. Staked to the ground on the
public way, as they were, they were forbidden. The Union
removed them when directed to do so and filed this suit under
42 U.S.C. §1983, contending that the local ordinance
violates the Constitution's First Amendment, applied to
the states through the Fourteenth.
district court denied the Union's motion for a
preliminary injunction, 2014 U.S. Dist. Lexis 59340 (E.D.
Wis. Apr. 29, 2014), and about a year later entered summary
judgment for the Town. The Union has appealed from the second
neither the district court nor the parties considered the
possibility that this case may be moot. By the time the court
entered summary judgment, the construction project that led
to the use of demonstrative rats and cats had been completed,
and the Union was no longer picketing. It has not asked for
an award of damages, which led us to wonder whether we have a
live controversy. At oral argument counsel for the Union said
yes, because a dispute might crop up again if the Union
decides to demonstrate against a future construction project
in Grand Chute. Yet for a case to remain live because it is
capable of repetition, there must be "a reasonable
expectation that the same complaining party would be
subjected to the same action again." Weinstein v.
Bradford, 423 U.S. 147, 149 (1975). The record does not
contain any information about this likelihood. How many
construction projects built with non-union labor have caused
labor disputes in Grand Chute? Are more such projects
planned? And even if such a project is built, and a dispute
recurs, this suit may still be moot if the
controversy about that future project would not evade review.
Labor disputes often are short-term affairs, but many are
long lived. Even for short-term disputes, the possibility of
damages keeps a case alive.
there is one more problem: between the district court's
order denying interlocutory relief and its order granting
summary judgment, the Town amended its code (see Ordinance
2015-01) and changed the definition of a sign. The citations
in this opinion are to pre-amendment language and numbering.
None of the parties alerted us (or the district court) to
this fact, which potentially affects the proper disposition
if the controversy remains live.
cannot decide this suit on the merits without being confident
that we have a justiciable controversy. The district court
needs to take another look at it. If the Union persists in
abjuring damages, the district court must determine whether
the probability of a fresh dispute between this union and
Grand Chute is high enough-and the risk that it would be over
too quickly to allow judicial review also high enough- to
satisfy the "capable of repetition yet evading
review" proviso to the mootness doctrine. Then it must
address the validity of the Town's current ordinances,
rather than one that was changed before the entry of final
we cannot resolve the merits while the presence of a
justiciable controversy is in doubt, we can say a few words
about other issues that the district court needs to consider
if the controversy remains live.
of City Council of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789 (1984), holds that a city may ban all private
signs (including political ones) from the public way. Grand
Chute has done just that-on paper. That the city allows its
own signs (e.g., "No Left Turn") does not require
it to allow private structures on public property, whether or
not the private structure is designed to convey a message.
See, e.g., Pleasant Grove v. Summum, 555 U.S. 460
Union cannot avoid Taxpayers for Vincent by
observing that the rat and cat are symbolic speech, because
Clark v. Community for Creative Non-Violence, 468
U.S. 288 (1984), holds that a public body may forbid the
"action" component of symbolic speech, provided
that it does not discriminate against disfavored viewpoints.
In Community for Creative Non-Violence the National
Park Service forbade all tents on the Mall in Washington,
D.C., and the Court held that this was valid even though a
group wanted to camp out to make a political point.
ordinances in Grand Chute are comprehensive and
content-neutral, and decisions such as Community for
Creative Non-Violence and Taxpayers for Vincent
hold that a governmental body need not make ad hoc exceptions
to such rules. To the contrary, limiting official discretion
about who is entitled to speak is a vital goal of the Supreme
Court's jurisprudence under the First Amendment. See
Forsyth County v. Nationalist Movement, 505 U.S.
123, 130-31 (1992); Niemotko v. Maryland, 340 U.S.
268 (1951). The sort of ad hoc exception that the Union
wanted Grand Chute to make (on the ground that the rat and
cat did not jeopardize traffic safety and were only
temporary) not only would have transgressed the rule against
open-ended discretion but also would have created a form of
content discrimination. See United States v.
Stevens,559 U.S. 460, ...