With apologies to Jeff Foxworthy and his "you might be a Redneck" routine: "If you arrive at work in the morning and find a 25-foot high inflatable rat balloon on the sidewalk – you might have a union issue." That was the situation in which Miami University officials and one of their construction contractors found themselves recently. Laborers Union Local 534 has a dispute with a contractor doing renovation in a building on the Miami University campus in Oxford, Ohio. A common method used by unions to show displeasure with non-union contractors is public display of the 25-foot rat balloon with appropriate signage and handbills to equate the contractor with the "rat." When Laborers Local 534 attempted to inflate the balloon on the sidewalk outside the campus building, they were stopped by Miami University police.
Local 534 filed a lawsuit in the United States District Court for the Southern District of Ohio, asking for a temporary restraining order ("TRO") against the University allowing the Union to inflate their balloon. The Union argued that the University and its police were violating their First Amendment right of free speech. This was not the first Constitutional law rodeo for this particular rat. In an earlier case, the United States Circuit Court of Appeals for the Sixth Circuit, which covers courts in Ohio, ruled that display of the inflatable rat is constitutionally-protected expression. But, in this case, Judge Barrett refused to grant the TRO for the Union. To get a TRO, the Union had to show a substantial likelihood that they would succeed with their First Amendment argument when the case goes to a full trial. The Judge said the Union did not show a substantial likelihood of success because the specific sidewalk on which they were attempting to inflate the balloon is only a "limited public forum" and therefore the Union’s right to speech is more limited.
Determining whether to limit speech in a public area requires a court to consider whether the location is a "traditional public forum" or a "limited public forum." In this case, even though the Union demonstrated that the sidewalk in question is designated a "public right of way" on county maps, the Judge was more persuaded by the fact that the sidewalk is entirely on the University campus, is maintained by the University, and is patrolled by University police, rather than City police. The Union had no evidence that the sidewalk has been used historically for public speech or that Union support was being singled out for restriction. Also, the University presented evidence that the balloon might present safety hazards. The Union can continue to pursue the case to a full trial where both sides will have a more expanded opportunity to present evidence and arguments, but in the meantime, the rat has been deflated.