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Laborers' International Union of North America, Local 534 v. Dr. David Hodge

November 17, 2011


The opinion of the court was delivered by: Judge Michael R. Barrett


This matter is before the Court upon Plaintiff's Motion for Temporary and Preliminary Injunctive Relief (Doc. 2). On August 23, 2011, this Court held a hearing on Plaintiff's Motion. (Docs. 4, 6.) Both parties filed post-hearing papers: Defendants' Memorandum in Opposition (Doc. 7) and Plaintiff's Post-Hearing Brief (Doc. 8).


Plaintiff Laborers' International Union of North America, Local 534 ("Local 534") represents construction craft laborers performing work in Butler County and Warren County, Ohio. (Doc. 6, Hearing Transcript (8/23/2011) at 11.) During the relevant time frame, Local 534 was involved in a labor dispute with a contractor who was performing work on the Marcum Center Addition/Renovation project located on Miami University's campus in Oxford, Ohio. (Id. at 12-13.) Defendants are Dr. David Hodge, President of the University, and John McCandless, Chief of Miami University Police Department.

Local 534 planned to strike the contractor's job site at the Marcum Center to coincide with the University's campus move-in days on August 18 and 19, 2011. (Id. at 13-14.) On the first day, Local 534 picketed and distributed handbills on the sidewalks parallel to Patterson Avenue without incident. (Id. at 23-24.) Local 534 also inflated a large rat balloon in the same area. (Id. at 69.) In the construction industry, the rat is a symbol of contractors who pay substandard wages and no fringe benefits. (Id. at 14.) Police officers from the University arrived and asked that the rat be deflated. (Id. at 69.) On the second day, Local 534 attempted to inflate the rat in another location along Patterson Avenue. (Id. at 29-31.) However, police officers from the University stopped Local 534 before the rat was unloaded from the truck. (Id. at 40.) The police officers threatened to destroy the rat balloon. (Id. at 18.)

The testimony at the hearing was that the rat itself is 10 to 12 feet wide and 20 to 25 feet tall. (Id. at 25, 27.) There was also testimony that the rat requires a portable generator and is attached with ropes to stakes, which are placed approximately ten feet away from the rat. (Id. at 25-26.)

While Local 534 was prohibited from displaying its rat balloon on August 18, 2011 and August 19, 2011, for purposes of its Motion, Local 534 only challenges Defendants' actions on August 19. (Doc. 8, at 3.) Local 534 argues that on that day, the location selected by Local 534 was within a sixty-six foot public right-of-way ("the August 19 location") and therefore its display is protected by the First Amendment. Local 534 requests that this Court enjoin Defendants from prohibiting Local 534 from displaying its rat balloon in the August 19 location; and from threatening to seize and destroy Local 534's property.


A. Standard of Review

In determining whether to issue a temporary restraining order, the Court should consider: "(1) whether the movant has a strong likelihood of success on the merits; whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction." Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011) (quoting Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)). "The foregoing factors are not prerequisites, but rather are factors which the Court should balance." United States v. Edward Rose & Sons, 384 F.3d 258 (6th Cir. 2004). A temporary restraining order "is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it." See Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 F. 3d 566, 573 (6th Cir. 2002).

1. Likelihood of success

Local 534 brings its First Amendment claim pursuant to 42 U.S.C. § 1983 and also brings a claim for declaratory judgment. The Sixth Circuit has previously found that the use of a portable rat balloon is constitutionally protected expression. See Tucker v. City of Fairfield, 398 F.3d 457, 463 (6th Cir. 2005). As the parties have recognized, Local 534's claims hinge on whether the August 19 location was a traditional public forum or a limited public forum.

"The government is not required to grant access to all who wish to exercise their right to free speech on every type of government property 'without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.'" United Food & Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738, 746 (6th Cir. 2004) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund., Inc., 473 U.S. 788, 799-800 (1985)). "Rather, the existence of a right of access to government property and the extent to which such access may be limited by the government depend on the character of the property at issue." Id. (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983)). In this regard, the Supreme Court has adopted a forum analysis to determine when "the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes." Cornelius, 473 U.S. at 800. The Supreme Court has recognized three types of public fora:

(1) the traditional public forum, (2) the designated public forum and (3) the limited public forum. Miller v. City of Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010) (citing Pleasant Grove v. Summum, 129 S.Ct. 1125, 1132 (2009)). The type of forum dictates which constitutional standard for restrictions on ...

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