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I must admit I was startled. I had not expected to see a gorilla when I left the golf course. And I certainly hadn’t expected to be within 20 feet of one. (1) Yet there he was, standing on a street corner in Irvine, swaying rhythmically from side to side, listening to his iPod. He was holding a large, arrow-shaped, yellow sign that said, “Homes for Sale.” At the risk of sounding anthropomorphic, I had the distinct impression he was smiling, despite the stultifying boredom of standing on a street corner for hours on end waggling a large yellow arrow. I assume he was either an illegal gorilla or had fallen on hard times, since this is precisely the kind of work I’m told we need gorillas to do because humans won’t. (2) I watched him until the signal changed. The whole concept of this kind of advertising eludes me. I mean, it’s not like seeing a gorilla with a big yellow arrow is likely to remind me that I meant to buy a home while I was out. “Oh, that’s right; Kelly wanted me to stop and pick up a new home after I finished golfing. What a break! This guy’s got some!” And even if I were the one guy in a million who would roll down his window and enter into negotiations with a gorilla, nobody ever goes through with those purchases. Sure, people will talk to a gorilla about a new house, people will act like they’re interested in what the gorilla has to sell, but our society is still way too speciesist for anyone to ever close the deal. I talked to three different real estate boards and none of them is aware of a single home sale by a gorilla last year. (3) ANIMALS WITH SIGNS Apparently large-animal-with-arrow-sign advertising works in other areas of marketing. I know this because it is generating more litigation nationwide than the Americans with Disabilities Act. Judging from the number of lawsuits reported in the popular press, people find large-animal-with-arrow-sign advertising almost as offensive as sexy-women-without-clothes-on dancing. A lot of places seem to consider the arrow the key part of the act and therefore see a violation of their sign ordinances. This seems to me to completely miss the truly remarkable significance of employing a gorilla. Most municipalities have focused way too much on signage and way too little on the problems of underemployed species. And, of course, the result of such shortsightedness is tragic. In Woodland Park, Colo., for example, a rare giant chicken has been ordered to stop walking along Highway 24 brandishing a sign urging passersby to eat at Wild Wings ‘n Things. (4) The city manager says the chicken (5) violates the city’s sign ordinance and threatens Woodland Park’s “mountain grandeur.” As I understand it, the ordinance in question says nothing about “mascot signage” but includes a provision that “All signs not expressly permitted or exempted from this regulation are specifically prohibited.” Since there is nothing in the ordinance about giant chickens .�.�. well, you went to law school; construct your own syllogism here. And while you’re at it, construct a new sign ordinance for Woodland Park; the one they’ve got sucks. SAVE THE CHICKENS While the Colorado Springs Gazette does not explain why PETA is not holding torchlight parades over this injustice, it does quote several townspeople who recognize the shortsightedness of the city manager’s decision. My favorite is, “It’s a funky town; he’s a funky chicken.” This is the kind of straightforward, cohesive logic I strive for every day. (6) Eleven hundred townspeople have signed a petition to save the Wings ‘n Things (7) chicken, who, for reasons I cannot explain other than by reference to the townspeople’s affection for him, is referred to as The Chicken Man. I thought at first that might mean he wasn’t a real chicken. But the owner of Wings ‘n Things is quoted as explaining the chicken’s silence by pointing out, “He does not talk; he’s a chicken,” so I know that’s not it. And it probably wouldn’t matter if it were. There seems to be resistance to this kind of advertising no matter who does it. According to my friend Kevin Underhill, who writes Loweringthebar.net, “Police in Searcy, Ark., have no leads in repeated attacks against Steven Turnage, who wears a chicken suit on local city streets to promote a fast-food restaurant.” Someone went so far as to shoot bottle rockets at that poor guy, setting his chicken suit on fire. (8) In McHenry, Ill., they banned a woman who dressed as the Statue of Liberty to promote a tax preparer and a guy who dressed as a mattress to remind people their wife told them to pick up a mattress on the way home after they bought the new house and picked up the chicken wings. (9) You know how Robert Frost said, “Something there is that doesn’t love a wall”? Well, whatever that something is, it has nothing on the forces of the universe that converge against mascot advertising. RATS ON APPEAL Take New Jersey. Please. (10) According to the Associated Press, “The New Jersey State Supreme Court [will decide] whether a town can ban a 20-foot inflatable rat.” Honest. Apparently some unreported natural disaster wiped out all the trial courts in New Jersey. Why else would their Supreme Court be deciding issues like this? Seems the International Brotherhood of Electrical Workers decided the best way to draw attention to their grievances against Gold’s Gym was to post a 20-foot inflatable rat outside the gym. While the significance of that might not have been readily apparent in Redwood City or Corte Madera, it was unmistakable in New Jersey. According to the New Jersey Appellate Division’s opinion, a rat “is a well-known symbol of protesting unfair labor practices.” (11) Anyway, the IBEW was ordered to take down the rat on the ground it violated a local sign ordinance that prohibited “balloon signs or other inflated signs (excepting grand opening signs).” They did, but when they put it back up 45 minutes later, (12) union official Wayne DeAngelo was cited. He was convicted of violating the ordinance and fined $133. He appealed. The state appellate court ruled against him, but there was a dissent. Sing hallelujah, brothers and sisters, there was a dissent! The dissenting judge pointed out the possibility of unequal treatment of similarly situated 20-foot inflatable rats. Relying on the ordinance’s exception for grand openings, he expressed concern that had a new Disney store opened up right next to Gold’s Gym, it could have displayed an identical rat right next door, to advertise the Disney film “Ratatouille,” while the IBEW’s rat was being hauled off to the pokey. (13) That’s trouble with a capital “T” and that rhymes with “D” and that starts “Dissent.” This is important because there is an automatic right of appeal to the state Supreme Court in any case in which a dissent is filed. DeAngelo is chomping at the bit. His lawyer says of the upcoming appearance before the Supreme Court: “That’s the silver lining.” I dunno. I have a feeling the state Supreme Court may not be that thrilled about hearing a $133 inflatable rat case. They may wonder why the IBEW didn’t just paint “GRAND OPENING” on their rat and save them a lot of trouble. Appellate counsel might be well-advised to forget the silver lining and see about getting one made of asbestos for his suit. BLAZING BAGELS Fortunately, the California Supreme Court’s docket will not be similarly sullied. (14) The U.S. Court of Appeals for the 9th Circuit ruled in Ballen v. City of Redmond (2006) that the Blazing Bagels bagel shop could have an employee stand outside with a sign urging people to come in and buy bagels. Seems to me a shop that describes their bagels as “blazing” might be better off if they sent an employee outside with a gun to steer people into the store; a sign might not be enough. But that wasn’t the issue. The issue was whether Redmond’s sign ordinance restricting purely commercial speech was drawn narrowly enough to pass constitutional muster. (15) The 9th Circuit said it was not. I could spend several more paragraphs explaining why Redmond’s ordinance was flawed, but if I did, you’d stop reading. I have not a clue why you’ve read this far, but I’m reasonably certain it wasn’t for scholarly exposition of recent 9th Circuit cases. All you need to know about the Redmond case is that the court awarded the flaming-bagel guy fees and costs and the city of Redmond ended up out of pocket $165,508. Now I don’t know how much disposable cash the city of Redmond has jingling around in its figurative jeans, but I’m pretty sure the next time they take umbrage over a sign, they’ll be a tad more reluctant to make a federal case out of it. And I’m pretty sure all the city managers in California know about the Blazing Bagels case. I can’t see them advising their clients to risk $165,508 over a sign unless it’s pretty obnoxious. And, say what you will about them, gorillas are not obnoxious.
William W. Bedsworth is an associate justice at the 4th District Court of Appeal in Santa Ana, Calif. His book A Criminal Waste of Time , featuring more than 30 of his best columns, can be ordered at LawCatalog.com. This column previously appeared in The Recorder , an ALM publication in San Francisco.
1. I’m pretty sure of the distance between us because I had three-putted it several times in the previous five hours. 2. Apparently, we are the only primates frightened by the prospect of “dehumanizing work.” 3. Perhaps “talked to” is a bit of an exaggeration, since no one said a single word to me after I asked the question. But I think three hang-ups in three calls are enough to establish a negative response. 4. Shouldn’t there be a second apostrophe after the “n,” as in “Wild Wings ‘n’ Things”? After all, we’re apostrophizing both the “a” and the “d.” That’s the kind of problem my sign ordinance would address. Give thanks I’m not on your city council. 5. Obviously a free-range chicken. 6. And, according to many, achieve. 7. I’m still bugged by that missing second apostrophe. Do you think maybe they only need one because what they were going for was Wings On Things? 8. Let’s just hope no one does that to real chickens, like the one in Woodland Park. 9. Wings In Things? 10. Henny Youngman, gone but not forgotten. 11. See how much we miss out here on the left coast? 12. Somewhere is a union lawyer who can lay claim to one of the most unusual billable hours in history: “Research and analysis re: propriety of giant inflatable rat display.” 13. Appellate work appeals to a very special kind of individual. 14. Actually, I have nothing against the rat case, but I couldn’t pass up a chance to use a phrase like “similarly sullied.” I just know I’m not gonna get that chance in an opinion. 15. Please pass the muster; my hot dog’s getting cold.

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