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Wisconsin: Federal Judges Uphold Ban On Freeway Political Signs
Federal appeals court upholds anti-highway billboard ordinance used to ban waving the American flag on an overpass.

Impeach Obama sign
Waving flags or political protest signs from a highway overpass is a common sight in many parts of the country, particularly during election season. This form of free speech expression can now be banned as a traffic hazard under a ruling handed down last month by the Seventh Circuit US Court of Appeals.

A three-judge appellate panel declared the ordinance that Campbell, Wisconsin drafted to put a stop to the flag-waving and "Impeach Obama" signs that had generated a handful of angry calls to town offices. On October 27, 2013, the measure was used to order Gregory Luce off the bridge and fine Nicholas Newman $139 for holding an American flag on the pedestrian overpass that crosses Interstate 90. The Thomas More Law Center took up their cause in a lawsuit filed in January 2014.

Campbell's police chief, Tim Kelemen, was so incensed by the lawsuit that he began a "sock puppet" campaign to discredit and embarrass Luce. The Monroe County Sheriff's office caught the chief creating fake homosexual profiles in Luce's name on using an official town computer. The police chief later signed Luce up at several gay pornography websites from his home using a city-supplied laptop. The chief then posted harassing comments about Luce under the pseudonym Bill O'Reilly on the La Crosse Tribune website.

"While discussing it, Kelemen said that it was because Luce was harassing him and his officers, and he felt it was the only way to get a little back at him," officer Jeffrey Spencer wrote in his notes after interviewing the chief. "Kelemen went on to confirm what he had done and said he wasn't going to deny that he did it, but said he didn't think it was that big of a deal."

Kelemen was charged for his misconduct and allowed to resign with full benefits after performing forty hours of community service. The appellate panel rejected the idea that the police chief was acting in an official capacity. They concluded that the chief cannot be held accountable beyond the community service time already served.

"Kelemen did some of the dirty work while on duty and used an office computer for some posts," Judge Frank H. Easterbrook ruled. "But he did not use official information or privileged access to information... Anyone else could have done exactly what Kelemen did."

Kelemen also happened to be the sole source of information used by the town to justify the anti-overpass sign ordinance.

"Kelemen's behavior bears on this federal suit, however, by undermining his credibility," Judge Easterbrook wrote. "He told the legislature, and the judge, that the Tea Party's banners caused drivers to pull off the road to take photographs, produced complaints from drivers about slow and snarled traffic, and so on."

A traffic engineer testified that the light traffic on that stretch of interstate made the possibility of "snarled traffic" highly unlikely. He also pointed out that the section of road has no history of accident problems. The court took issue with the expert, and responded by asserting that the homemade overhead signs are far more dangerous than the overhead signs, electronic and otherwise, operated by the state department of transportation.

"It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it," Judge Easterbrook wrote. "When one car slows suddenly, another may hit it unless the drivers of the following cars are alert -- and, alas, not all drivers are alert all the time."

The three-judge panel only struck the portion of Campbell's ordinance extending the sign ban up to 100 feet away from the overpass. A copy of the ruling is available in a 140k PDF file at the source link below.

Source: PDF File Luce v. Campbell (US Court of Appeals, Seventh Circuit, 9/22/2017)

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