The rats and cats are back. We first reported on this case in 2016, after the Seventh Circuit determined that it might be moot. As it turns out, the case was not moot, and “Scabby the Rat” returned to the appeals court again. In a ruling last month, the Seventh Circuit found that the district court properly determined that the town’s ordinance prohibiting the inflatable rat was not content based and accorded with the First Amendment.
The facts of the case can be found in our earlier post. After the Seventh Circuit suggested that the case might be moot due to an agreement between the union and employer, the case went back to the district court. The district court subsequently found the case not to be moot, as the union was seeking damages for its inability to place the rat in the right-of-way. In its ruling, the district court then found that the ordinance in question—which prohibited the placement of private signs in town right-of-ways—was content neutral and survived First Amendment scrutiny.
The Seventh Circuit agreed. In its February ruling, the appeals court found that the limitation on private signs in the right-of-way was content neutral, as it was unrelated to the message of the sign(s) in question. The court went on to determine that the town’s enforcement of the sign code was also content neutral, after the union contended that the town’s enforcement practices were content based. The appeals court refused to disturb the district court’s findings of fact in this regard.
The court of appeals also considered the union’s contention that a revised version of the ordinance was content based, but held that any issues relating to the revised ordinance were unripe.