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Giant inflatable rats used by labor unions are constitutionally protected free speech, labor board rules


“Scabby the Rat” is a fixture at labor disputes, first deployed in 1990 by a union in Chicago.

“Scabby the Rat” was first used by labor unions in 1990.
The inflatable rat ranges in size from 12 feet to 25 feet.
The Trump administration had argued its “red eyes, fangs, and claws” constituted an illegal threat.

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Labor unions have a constitutionally protected right to protest using giant inflatable rodents, a federal board ruled Wednesday.

“Scabby the Rat,” as it is known, has became a staple of labor protests in the United States, often rolled out when a company has decided to hire non-union contractors. The menacing inflatables were first deployed in 1990 by a bricklayers union in Illinois, according to the Chicago Tribune. Some have been as tall as 25 feet.

In this case, the International Union of Operating Engineers, Local 150, headquartered just outside Chicago, had brought a 12-foot “rat” along with it to a trade show for recreational vehicles. The target was Lippert Components, which supplied parts for another firm, MacAllister Machinery, that the union accused of engaging in unfair labor practices.

Under the 1947 Taft-Hartley Act, unions are generally prohibited from engaging in secondary boycotts, or seeking to intimidate so-called “neutral” companies that are not the direct target of their dispute. The question considered by the National Labor Relations Board – an independent federal agency whose members are appointed to five-year terms by the president – was where to draw the line between legal speech and illicit intimidation.

The Trump administration had sided against labor, submitting a legal brief maintaining that the giant rats were “glaring in character and size and an unmistakable symbol of contempt,” their “red eyes, fangs, and claws” constituting a threat, not constitutionally protected expression. The ACLU, in turn, argued that the First Amendment was at stake, arguing that the previous administration was “attempting to exterminate Scabby because he is a labor symbol.”

Ultimately, even those members of the NLRB who were appointed by former President Donald Trump sided with the ACLU and organized labor.

In her opinion, NLRB Chairman Lauren M. McFerran, a Democrat and appointee of President Joe Biden, wrote that courts “have consistently deemed banners and inflatable rats to fall within the realm of protected speech, rather than that of intimidation and the like.”

The NLRB’s three other members, all Republicans, likewise agreed that while federal labor law limits activities targeting a “neutral” employer, it does not override the Constitution and its protections for free speech.

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