That Giant Rat Balloon Is Protected by the Constitution

Photograph by Bob Krist/Corbis

The towering rat balloon—six to 25 feet tall, often dubbed “Scabby the Rat”—is a common and sometimes contentious sight. It’s a gimmick used most frequently by unions to protest employers, but the inflated rats have occasionally been used by unions to protest other unions and, in an ironic gesture, by a business group protesting a hearing at the National Labor Relations Board. The rat has seemed a bit worn-out: Last year the AFL-CIO’s Building and Construction Trades Department announced it was officially retiring the balloon rat because it “symbolizes intimidation tactics of 30 years ago.”

Individual unions have kept deploying rogue rats, anyway. As a way to pressure companies and get attention from customers, a giant rodent offers obvious advantages. The symbol is memorable, immediately recognizable, and much cheaper and easier (if less effective) than the hard work of mobilizing a critical mass of human protesters. A federal judge’s decision this week illustrates a further reason that unions resort to the rat: It’s less likely than a picket line to get shut down.

The ruling, by Judge Joseph Bianco of the Eastern District of New York, rejected a request from an asbestos contractor to make local laborers union stop using the rat in a dispute over a supervisor. The inflatable rodent isn’t prohibited by a clause in the company’s contract with the union banning “disruptive activity,” a category that includes strikes, boycotts, and pickets, because the prop isn’t similar to any of those tactics, the judge reasoned. “To hold otherwise would be to prohibit the union from engaging in any speech that is harmful to plaintiff’s business image.”

Several rulings over the past two decades have affirmed “Scabby the Rat” as a form of symbolic speech protected under the First Amendment. Protesting humans, in contrast, haven’t fared quite as well. Courts have upheld restrictions on union pickets, treating them differently from other forms of protest. The reasoning, as Justice William Douglas put it in a 1942 concurrence, is that a union picket is “more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action …”

Judge Bianco wrote that the rodent is in the clear: “[T]he defendants’ peaceful use of a stationary, inflatable rat to publicize a labor protest is protected by the First Amendment.” Expect to see Scabby for a long time to come.

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