December 13, 2005

"You could probably have sold Old Dutch root beer and got the same attention."

Remember the case about the the anti-gay pastor who was told to remove his banners from the Beltline overpass here in Madison? I wrote about the Seventh Circuit's decision here. The case was sent back to U.S. District Judge John Shabaz, who held a one-day trial, and once again decided against Ovadal. According to the judge:
[T]he city showed that the "spectacle" created by the banners on Sept. 2, 2003, created a traffic hazard with traffic slowing, "but there is nothing that suggests it was the message" that caused the dangerous slowdown or caused police to ask the demonstrators to leave.

"There's no evidence to suggest it was the message. None whatsoever," Shabaz said. "People were asked to leave (the overpasses) only because of the narrow circumstances . . . . You can't do it at rush hour. It isn't the message we (motorists) don't like, it's the fact that we can't get home on time."...

Shabaz said in his ruling Monday, "The mere fact that plaintiffs were engaged in a spectacle . . . it drew attention. You could probably have sold Old Dutch root beer and got the same attention."
What? Did you prefer the story that what really slowed down the Madison drivers was the message: "Homosexuality is sin." Well, the judge found the facts. He thinks they would have slowed down just as much for root beer. What are you going to do about that, Seventh Circuit?

11 comments:

jeff said...

In Germany at traffic jam on the Autobahn is called a "Stau."

I often held that the quickest way to create a stau was to put up a sign that said "Stau ahead" (in German, of course).

Yeah, signs slow people down. Can we ban billboards during rush hour too? I'd love to see them take that tack on it.

me said...

I have to agree with Judge Shabaz. When you are going 60 or 70 miles an hour on the beltline, you don't need a distraction on an overpass.

brylin said...

The Seventh Circuit Kanne opinion is here.

CEB said...

A very bad decision. The Klan and the Nazis hold marches and rallies that create huge disturbances, yet courts hold that negative reaction by an audience cannot be used to curtail speech rights.

Ann Althouse said...

By the way, Madison has subsequently passed a law banning all signs on the overpass, so this First Amendment problem cannot recur.

Goesh said...

- makes sense to me, no gawking at banners hanging down from an overpass - there's enough distraction with cell phones, brats in the back seat acting up and aggressive drivers

brylin said...

The Seventh Circuit opinion says: "If the city had a policy that prohibited not just Ovadal’s,
but all protests and all signs on all Beltline overpasses, this
could certainly be a legitimate place and manner restriction
because it would be clearly content-neutral."


So by passage of the city ordinance banning all signs on the overpass, it would seem that the Seventh Circuit would affirm the trial court.

But aren't there billboards in close proximity to where this overpass is located? What if Ovadal leased a billboard and displayed the same message and it resulted in the same traffic hazzard?

James Wigderson said...

Anybody who's been stuck in rush hour on election day because some campaign thinks it would be cute to hang signs off an overpass will sympathize with this decision. As for billboards, they belong there, they don't move, and they are intentionally trying to distract drivers. Somebody waiving a banner or putting a sign in an odd place is.

brylin said...

Haven't you seen movable billboards and billboards with screens that show pictures and change their message?

John Jenkins said...

Given that the law has changed to forbid all such signs, why is this case not mooted? Is there still a claim for damages? If so, how will they be measured?

Ann Althouse said...

JJ: Without reading the case again to see if there are damages claimed, I think it's safe to say that this falls within the "voluntary cessation" exception to mootness. This exception is needed to keep defendants from getting out of lawsuits by changing their policy, when they can just change it right back.