by Bill Pinto

The U.S. District Court for the Southern District of Ohio recently denied a union’s request for a temporary restraining order (TRO) seeking to enjoin the Miami University Police Department from prohibiting the display of a large inflatable rat as a part of the union’s protest of a construction company performing renovations to a campus building.  Laborers’ International Union of North Am., Local 534 v. Hodge, Case No. 1:11cv569, 2011 U.S. Dist. LEXIS 132883 (S.D. Ohio Nov. 17, 2011).

In deciding whether to issue a TRO, courts will consider: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would experience irreparable harm without an injunction; (3) whether the issuance of the TRO would cause others substantial harm; and (4) whether the issuance of the injunction would serve the public interest. 

The court focused its attention on the first prong.  Whether the union could establish a strong likelihood of success on the merits required an evaluation of the expression at issue and the location where the union wanted to set up its protest.  The court acknowledged Sixth Circuit precedent holding that the use of a portable rat is protected expression under the First Amendment.  The issue, however, turned on whether the location where the union set up the inflatable rat was a traditional public forum or a limited public forum.  The union argued that the grassy area where they wanted to stage their protest was a public right-of-way like any other public sidewalk.  The university disagreed. 

The testimony established that the university’s land was given before the City of Oxford existed.  Further, the university owns the roads, sidewalks and right-of-way on the street where the union tried to set up the rat.  The trees, landscaping, and computer and electrical lines are all installed and maintained by the university without any city involvement. 

The union argued that regardless of who owned the property, it was a “public forum” based on historic use.  However, the Sixth Circuit had previously ruled that certain areas on the Miami University campus that may possess the characteristics of a public forum elsewhere were “limited public fora” within the boundaries of the university’s campus.  See Gilles v. Garland, 281 Fed. Appx. 501 (6th Cir. 2008).  Specifically, the university had a history, consistent with its educational mission, of limiting expressive activities to certain public areas on campus.    

The district court concluded that the location at issue was like the open areas in Gilles—it is part of the university campus.  Even though maps show a right-of-way adjacent to the street, the testimony established that those lines had been ignored by the university and the City of Oxford.  Further, in addition to the landscaping and infrastructure that the university maintains on that property, the university police also make arrests and issue tickets within the area at issue.  Historically, the university has not permitted any use of the grassy area at issue as a public forum.  Thus, the court declared the area a limited public forum where the university was free to limit its use, provided the restrictions are not viewpoint-based and are reasonable in light of the forum’s purpose.  The union did not challenge the university’s restriction as content-based or unreasonable.  Therefore, the union had not demonstrated a strong likelihood of success on the merits. 

The court held that the other factors weighed against granting the TRO.  Having failed to establish a strong likelihood of success on the merits, the union could not establish the irreparable harm prong.  Likewise, the court found that there is no public interest to protect where the movant fails to demonstrate a strong likelihood of success on the merits.    The defendants also showed that the ropes required for the inflatable rat would have damaged the trees in the area, and that the 20-foot tall rat was a safety hazard because it obscured drivers’ views of students trying to cross the street. 

Although the case is a victory against the union’s use of the rat – a common prop against construction employers – the facts of the case limit its application in other contexts.  For example, the fact that the street at issue was completely within the boundary of the campus property that was given to the university before the existence of the City of Oxford is significant.  Generally, union protests of construction companies like this occur on a public sidewalk, which courts generally find to be traditional public fora and where restriction of First Amendment expression is very difficult.  So the court exterminated the rat in this case, but, as is often the case with rats, we can expect them to return.

photo credit: ProArtWork