FAIRFIELD, Ohio — This southwest Ohio city cannot prevent a labor union from using a 12-foot-tall rat balloon at protest rallies in a public right of way, a federal appeals court ruled today.

The 6th U.S. Circuit Court of Appeals ruled 2-1 in Tucker v. City of Fairfield that Fairfield cannot enforce an ordinance that would prohibit the International Association of Machinists and Aerospace Workers from using the inflatable rat on a strip of grass along a street. The ruling upheld a lower court's October 2003 decision.

Union members had used the balloon while picketing outside a car dealership that the National Labor Relations Board said committed an unfair labor practice by refusing to negotiate with the union.

At the third of three protests in 2003, the city cited union members for violating the ordinance, which prohibits structures in the right of way. The rallies lasted one to two hours and involved 25 to 40 protesters, according to testimony.

The appeals court's majority ruled that using the balloon is protected expression under the First Amendment, and there was no evidence it presented a safety hazard or blocked traffic. Union members said the balloon was used without problem at protests elsewhere and that they secured it with stakes to prevent it from tipping over.

Fairfield cited a 1990 case in which another federal appeals court rejected a challenge to the city of Chicago's decision not to allow a Jewish organization to erect a menorah in a public area of O'Hare Airport. The 7th U.S. Circuit Court of Appeals ruled that there was no constitutional right for individuals or organizations to erect free-standing structures on public grounds.

But the Fairfield case is different because the rat balloon was a temporary structure, the 6th Circuit ruling said.

John Clemmons, Fairfield's law director, said he would recommend that the City Council ask the full 12-judge appeals court to reconsider the issue, or to appeal to the U.S. Supreme Court.