Can Protestors Display Inflatable Signs in Front of My Building?

August 25, 2010
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Q: I recently moved my business to a partially renovated building in lower Manhattan. Last month, when I arrived to open up, there was a huge 15-foot “rat” balloon out front and a bunch of men in hardhats passing out flyers. I found out that there’s a contractor in my building that’s using non-union workers, and this is how the union workers protest. The men out front aren’t violent or aggressive, but they are very loud and intimidating.

Based on numerous complaints, I believe the big rat in front of my business is discouraging my customers. Is there anything I can do to get these protesters away from the building and/or remove the huge rat?

A: If the inflatable rat, or any other type of object or protest, is hurting your foot traffic, your best bet is to go straight to your owner and demand that it have the display removed. However, according to a Supreme Court ruling in New Jersey, that might be easier said than done.

In that case, union workers were protesting in front of a local gym in response to a labor dispute with a contractor doing work at the gym. As part of their protest, the union workers displayed a 10-foot-tall inflatable rat-shaped balloon on the sidewalk in front of the gym. Based on a local town ordinance that prohibited inflated signs other than grand opening signs, a police officer arrived on the scene, ordered the union workers to deflate the rat and warned that he would issue a summons if they put the rat display back up. The police officer returned to the scene an hour later and found the rat re-inflated. As promised, the police officer issued a summons to the union worker in charge of the protest. The court ruled against the union worker and ordered him to pay a fine.

The union worker filed an appeal, alleging that he should not have been ordered to move or cited because the town ordinance violated his right to free speech. The appellate court also ruled against him, holding that a ban on all other inflatable signs other than grand opening signs was not a restraint on free speech. The court reasoned that the ordinance was “content-neutral”--that it regulated speech without regard to subject matter or viewpoint conveyed--with the purpose to enhance aesthetics and to protect public health and safety. The union worker appealed to the New Jersey Supreme Court.

The New Jersey Supreme Court reversed the appeals court’s decision and ruled in favor of the union worker. The Court held that a sign ordinance that prohibits a union from displaying a rat balloon, while at the same time authorizing a similar display at a grand opening, is content-based and unconstitutional. Specifically, the Court noted that the ordinance is content-based because: (1) it favors commercial over noncommercial speech; and (2) a violation of the ordinance is based on the purpose for which the sign is displayed [State of New Jersey v. Wayne DeAngelo].

Union protesters may be in a fairly strong position. But if there are multiple tenants in your building, you probably aren’t the only one complaining about the unsightly disruption. You might not be able to force the union protesters to move, but if you have enough support from other tenants in the building and each of you can prove that the protests are hurting your businesses, you might be able to persuade the owner to address the issue with the contractor that’s being protested, or hire another contractor that won’t attract union protesters.