Minocqua Brewing Company owner Kirk Bangstad last week threatened to sue Oneida County unless the county dropped then pending zoning ordinance violations against him, saying the county was violating Bangstad’s First Amendment rights.
The county did not drop the pending citations, however, and Bangstad was found guilty of one violation on Sept. 19 after not showing up for a scheduled court appearance.
In a Sept. 14 letter to Oneida County zoning director Karl Jennrich, Bangstad’s attorney, Mark Leitner, accused the county of targeting Bangstad for enforcement while looking the other way in other cases.
“The purpose of this letter is to advise you that the efforts by Oneida County and its officials, including yourself, to selectively enforce its ordinances against MBC, while refraining from such enforcement efforts with respect to numerous similarly-situated persons and entities, is a violation of the First Amendment’s guarantees of free speech and press,” Leitner wrote. “It is obvious that Mr. Bangstad’s political activism has earned him much admiration and support from the people of North Central Wisconsin, and MBC’s products have seen their popularity increase as Mr. Bangstad has become more and more outspoken in support of liberal and progressive political issues and candidates.”
Unfortunately, Leitner wrote, it was also obvious that the “vigorous political speech driving the increased popularity of MBC products” had caused rage and a desire for revenge among the conservative political leaders of Oneida County. 
“The Republican power structure knows a threat when it sees one, and it is eager to use any means — even unconstitutional actions — to cripple MBC and Bangstad and neutralize if not eliminate their ability to rally support for progressive politicians and issues in North Central Wisconsin,” he wrote.
Leitner laid out what he called the well-established elements of a First Amendment retaliation claim, namely that MBC and Bangstad “must ultimately show that (1) [they] engaged in activity protected by the First Amendment; (2) [they] suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was ‘at least a motivating factor’ in the defendants’ decision to take the retaliatory action.” 
Leitner said the elements were easily satisfied. He also said that the existence of ordinance violations for which MBC has been cited did not defeat the First Amendment claim but actually provided even greater support for it. 
“Typically, where the government has probable cause to pursue enforcement action (whether criminal or civil) against a person or business, that person or business cannot bring a successful claim of First Amendment retaliation against the government,” he wrote. “Only when there is no probable cause for government action may the claim proceed.”
But Leitner said there was an important exception to the probable-cause defense, and he wrote that that exception applied with full force to authorize MBC’s claims against the county.
“In Nieves, the Supreme Court ruled that ‘the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been,’” he wrote. “This exception is applied case-by-case, using common sense as the rule: a court ‘must consider each set of facts as it comes . . . and in assessing whether the facts supply objective proof of retaliatory treatment . . . common sense must prevail.’”
In a recent decision called Brewer, Leitner wrote, which was issued about a year ago, conservative United States district judge J.P. Stadtmueller ruled that the proof necessary to invoke the exception was a single email, written by a member of the town board that voted to take action against the plaintiff-activists, stating that the board “had voted with emotion” because the plaintiffs had “literally ticked off all the board members with meeting comments and on facebook [sic].” 
“The court ruled that it ‘accepts this as commonsense evidence that plaintiffs were treated differently because of their exercise of free speech, even if defendants had probable cause to pursue enforcement of municipal codes,’” he wrote.
The most relevant aspect of the Brewer case for MBC’s claims is that evidence that someone was treated more favorably than the plaintiff is not necessary to qualify for the probable-cause requirement exception, Leitner wrote.
“[I]nstead, it is sufficient when there is a statement of discriminatory motivation — that is, a desire to punish a person for engaging in protected speech — even when there is no evidence about how others were treated,” he wrote. “This emphasizes the fact that common sense is the guiding principle.”
And there is far more than common sense meeting the requirements of Nieves and Brewer to support MBC’s claims, Leitner continued.
“[T]here is evidence of actual discriminatory treatment, not only in the existence of numerous businesses at 317 E. Front Street and 329 E. Front Street allowed to operate without obtaining the permit that the county has uniquely demanded of MBC, but through the history of actions directed at MBC based on its protected First Amendment activity, including but not limited to your [Jennrich’s] own illegal cease and desist letter dated Sept. 29, 2020 ordering MBC to remove a large Biden sign on its premises (1) in reliance on a plainly unconstitutional statute while (2) the county allowed numerous Trump signs and signs voicing support for other Republicans as large as or larger than MBC’s Biden sign to remain undisturbed,” he wrote.

Attorney: Bangstad singled out
Leitner said the county has in fact engaged in discriminatory treatment of MBC at its 329 E. Front Street and 317 E. Front Street locations. 
“Over the last few years, the following businesses have operated at those addresses, and none were cited for violating the ordinance in the manner that the county has cited MBC, nor to our knowledge were any even threatened with a citation,” Leitner wrote, listing two cafes; a yarn and fabric store; a shoe repair and sales shop; an Orthotics store; two CPAs, and a benefit planning and investment business.
“Suddenly, out of nowhere, after many years of businesses of all kinds operating at the addresses in question without a word of concern from the county, it is the presence of MBC and only the presence of MBC that warrants citations — the presence of a business that proclaims its progressive politics repeatedly and loudly, from radio shows to the names of its beers,” Leitner wrote. “Tell whatever explanation you can contrive to the judge; we don’t believe the county will have any credibility whatsoever.”
Adding to the evidence of selective prosecution was the county’s effort to have MBC’s Biden sign taken down during the 2020 presidential campaign because it exceeded the maximum size for a political sign under the county ordinance, Leitner asserted. 
“First, there is no doubt that the county allowed dozens (if not more) of equally large Trump signs to remain in place without sending any threat letters such as the one you sent to MBC’s Mr. Bangstad on September 29, 2020,” he wrote. “On its face, this is discriminatory conduct that helps explain the county’s current actions.”
Second, and worse, Leitner continued, the county’s letter sought to enforce a clearly unconstitutional ordinance against MBC, emphasizing the county’s animus toward its political stances. 
“Under Reed v. Town of Gilbert — a United States Supreme Court case that was more than five years old when you wrote your threatening letter — a municipal ordinance regulating signs is deemed to be ‘content-based’ if ‘the restrictions in the [ordinance] that apply to any given sign . . . depend entirely on the communicative content of the sign,’” he wrote. “This is undeniably the case under the Oneida County sign ordinance.”
Leitner observed that, under the county ordinance, a sign that is “political” is subjected to various ordinance restrictions, including a restriction to 32 square feet in surface area, during the “election campaign season” as defined by Wisconsin statute. On the other hand, Leitner asserted, an on-premise sign that is not ‘political’ may be up to 64 square feet per face if it is between 0 and 100 feet from a right-of-way, and up to 250 square feet per face if it is more than 100 feet from a right of way.
“The observer has to read a sign to know whether the more restrictive provisions for political signs or the more lenient rules governing nonpolitical on-premise signs apply,” he wrote. “That means, in turn, that the rigorous ‘strict scrutiny’ standard controls the validity of the ordinance measured against the requirements of the First Amendment. Strict scrutiny requires the county ‘to prove that the restriction [of political signs] furthers a compelling interest and is narrowly tailored to achieve that interest.’”
The Reed court’s reasoning shows that this is a burden the county cannot carry, Leitner wrote.
“First, there is no legitimate reason, let alone a compelling state interest, to disfavor signs communicating political speech — which is at the core of the First Amendment’s protections — vis a vis commercial on-premise signs in terms of both size and the time period over which they may be displayed,” he wrote. “Second, there is no apparent tailoring of the means imposed by the political sign ordinance to the objectives it might conceivably serve.”
It could not be aesthetic, Leitner argued, because the county allows much larger and presumably more unsightly signs in the “purely commercial” setting. 
“For much the same reasons, the county cannot justify the political sign restrictions on grounds of traffic safety, because there is no reason to believe smaller signs pose less of a distraction to drivers than the larger signs permitted by Section 9.78(B)(1)m,” he wrote. “As a result, the county’s threats to enforce an unconstitutional ordinance against MBC provide a strong inference that it harbors an animus against MBC based on MBC’s advocacy for Democratic candidates and progressive political causes.”
Leitner said the county likely would try to respond to those arguments by claiming that it acts only when there is a complaint, and there were complaints against MBC but not any of the other businesses or political signs. 
Leitner wasn’t having it.
“Balderdash!” he wrote. “Oneida County cannot outsource compliance with the commands of the First Amendment to its residents. More important, as the district court held in Brewer, it is the county’s obligation to come forward with evidence that it enforces the law against others without regard to their political activity, not MBC’s burden to show the opposite.”
Taking action only upon citizen complaints heightens, not diminishes, a property owner’s concern that he will be singled out for enforcement based upon improper political reasons, Leitner argued. 
“Finally, as in Brewer, this argument improperly ends the inquiry at the investigatory stage; a mere investigation may properly be traced to a complaint, but taking action is solely and exclusively the province of the government,” he wrote.
Claiming to have disposed of the county’s principal defense, Leitner then revisited the elements of MBC’s claim, namely, that MBC and Bangstad “must ultimately show that (1) [they] engaged in activity protected by the First Amendment; (2) [they] suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was ‘at least a motivating factor’ in the defendants’ decision to take the retaliatory action.” 
All three are apparent on the factual record, Leitner contended.
“First, no one can dispute that MBC regularly and aggressively engages in speech protected by the First Amendment,” he wrote. “Second, the district court in Brewer expressly found that the fines and other adverse consequences of ordinance violations would deter average persons from engaging in free speech. The result here would be the same.”
Third, and again as in Brewer, Leitner asserted that the very same conduct that establishes the grounds for the probable-cause exception also supports a strong inference that the county acted with a purpose to retaliate against MBC for its previous advocacy and to intimidate it from continuing to exercise its First Amendment rights. 
“Allowing ten different businesses to operate at 329 E. Front and 317 E. Front over years and years without ever requiring any of them to pull a permit, then doing a U-turn to aim directly at MBC and require that it alone obtain the permit that so many others were allowed to do without is direct evidence of selective prosecution, and the only thing that separates MBC from its predecessors in that space is its relentless First Amendment activity,” he wrote.
Leitner maintained that his letter presented ample evidence that would not only establish the applicability of the probable-cause exception but satisfy the test for injunctive relief preventing ongoing violations of the First Amendment. 
“You must surely know that once discovery begins, MBC will obtain information about the private Facebook group dedicated to disparaging Mr. Bangstad, which claims several town board members as enthusiastic participants,” he wrote. “The county surely knows about this group, and it also surely knows that given the group’s existence, MBC cannot receive fair treatment from the town board — which likely is one of the reasons why the county continues needlessly to defer to the town board and direct MBC to seek relief there.”
Leitner gave the county 10 business days to resolve the matter by dismissing the pending citations with prejudice, and agreeing not to issue any more citations for violations of the permit ordinance on the same or similar grounds.
He also demanded that the county agree to work in good faith with MBC and its attorney to resolve all other land use issues relating to MBC’s occupancy and use of the 329 E. Front Street property; and that the county pay MBC’s attorney fees incurred in investigating its First Amendment claims and preparing the demand letter.
“It is in the county’s best interest to resolve this matter without the expense and inconvenience of litigation,” Leitner concluded.
However, the county did not dismiss the citations. This past Monday, Sept. 19, neither Bangstad nor his attorney showed up for a scheduled intake and Bangstad was found guilty by default, according to Jennrich.
The other citation remains on the docket, scheduled for Oct. 3. The fine is $452.50 for each citation.
After filing the two citations, on Aug. 29, Jennrich wrote to Bangstad alleging continued noncompliance with permit conditions and issued an order for Bangstad to come into immediate compliance. If he didn’t, Jennrich wrote, he would head to the zoning committee to recommend amending, suspending, or revoking Bangstad’s administrative review permit (ARP).
In fact, the agenda for Sept. 21, this past Wednesday, listed a possible closed session related to potential litigation over the matter and to discuss the Minocqua Brewing Company/Kirk Bangstad letter and permit enforcement.
Richard Moore is the author of “Dark State” and can be reached at richardd3d.substack.com.