Steve McKelvey, University of Massachusetts Amherst
John Grady, University of South Carolina
For over two decades, it’s been a staple in the anti-ambush marketing arsenal of sport properties that put their marquee events out to bid: the Clean Zone Ordinance. From the FIFA World Cup and NCAA March Madness, to Super Bowls and Olympic Games, the promised passage of event-specific ambush marketing legislation (ESAML) has been a necessary condition for a winning bid.[i] While the NFL’s “demands” for ambush marketing protections are not nearly as sweeping as those included in the bid documents for mega events like the World Cup or Olympic Games (which includes extra-ordinary trademark protections), requiring host cities to pass “clean zone” ordinances has become part of the costs of doing business for a city seeking to host the Big Game.
Given both the economic and pragmatic consequences of clean zone restrictions on host city’s local citizenry, it is frankly surprising that there has been so little public outcry or legal action against clean zone ordinances over the past few decades. Prior to this year’s Super Bowl, we could uncover just two instances of legal challenges to Super Bowl clean zones ordinances — in New Orleans in 2013[ii] and in Arlington, Texas in 2011[iii] – with neither gaining any precedent-setting legal traction.
However, a recent Superior Court of Arizona decision has cast a bright light (might we say a “bright line”) on the legality of clean zone ordinances. It also suggests that the not-so-little dirty secret of “clean zones” has been revealed for what they really are (or were?): a governmentally enforced means for a private sport organization to protect its multi-million-dollar sponsorship largess.
First, for the uninitiated, a typical bid package for the NFL Super Bowl (running over 100 pages) includes a provision requiring the host committee to work with local government to enact “clean zones.” More specifically, clean zones include restrictions on the following: Temporary Structures, Temporary Sales Permits, Temporary signage (including signage or banners, video screens, electronic message boards, or nighttime projections of commercial messages), Inflatables and Building Wraps. The typical bid document also included a “Preventive Fund” whereby, if such prohibitions could not be obtained, the Host Committee would need to provide a fund of $1,000,000 for the NFL to use to prevent ambush marketing.[iv]
Which brings us to the case at hand: Paulin v. Kate Gallego, et al.[v]
In preparation for the Super Bowl, scheduled to be played in nearby Glendale, Arizona on February 12, 2023, the city of Phoenix designated a nearly two-square-mile area (encompassing virtually all downtown Phoenix) as a “Special Promotional and Civic Event Area.” Resolution 22073, titled the Super Bowl Censorship Ordinance, provided that through February 19, 2023, no resident or business in this city-imposed “clean zone” would be allowed to display temporary signage without the approval of the city and two private organizations, the NFL and the Arizona Super Bowl Host Committee.
Local business owner Bramley Paulin owned two pieces of property in downtown Phoenix and sought to erect temporary signage on his property to take advantage of the high public visibility such signage would garner during the Super Bowl. He had even communicated with Coca-Cola, a competitor of official NFL sponsor Pepsi, who was unwilling to enter into an agreement with Paulin because his property fell within the clean zone area and Coke assumedly knew such signage would never be approved by the NFL.
Paulin decided to sue the city, asking the judge to declare the ordinance unconstitutional, and was represented by the Goldwater Institute, a public policy research and litigation organization dedicated to advancing the principles of economic freedom and individual liberty. More specifically, the plaintiffs alleged that the ordinance was an unconstitutional prior restraint on speech and an unconstitutional delegation of power. When the city assured him that they would change the law, Paulin agreed to briefly postpone the lawsuit thinking the city would repeal the ordinance. But the city instead made only a modest revision, leading the Goldwater Institute and Paulin to charge headlong back into court … and left with a decision that appears to have jeopardized the future of clean zones everywhere (or at least, pun intended, “muddied” it).
As to the first claim (unconstitutional prior restraint on speech), Judge Bradley Astrowsky first laid out the law, stating that “[p]rior restraints on speech and publication are the most serious and the least tolerable infringement” on free speech and expression.[vi] Such restrictions can survive, the judge continued, only if it survives strict scrutiny. In other words, the restriction would need to 1) serve a compelling governmental interest, 2) be necessary to serve the asserted compelling interest, 3) be precisely tailored to serve that interest, and 4) be the least restrictive means readily available for that purpose.[vii]
Historically, sport properties have asserted that the purpose of clean zones revolve around aesthetics (the notion that too many signs and inflatables would be unsightly) and public safety. However, legal commentators have long questioned whether these “purposes” serve a compelling governmental interest, let alone whether the clean zone ordinances enacted are narrowly tailored and are the least restrictive means to achieve these professed purposes by the municipality. After all, everyone involved knows the real purpose, and local governments would not get far, legally speaking, if it stated its compelling governmental interest was to protect the financial investment of the property’s official sponsors.[viii]
“The City … set up a circumstance in which a private entity is given the authority to make content-based decisions on speech,” wrote the judge. “There is no legitimate government interest in content-based regulation of signs, let alone regulation of signs based on the content preferences of private businesses that are given special privileges by the government. Courts have recognized two substantial government interests that can sometimes justify regulations on commercial signage: public safety and aesthetic. …The government, not the plaintiff, bears the burden of proving that the restriction serves these ends with a proper narrow tailoring, (citation omitted), and it has not done this.”[ix]
The ordinance was also deemed by the court to be unconstitutional because the city delegated decision-making power to an unaccountable private actor (here, two actors: the Host Committee and the NFL). [I]t is well-established theory,” wrote the judge, “that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control.”[x] “Handing over power to an unaccountable third party [to decide what signs could be posted] is totally antithetical to the principles of limited government enshrined in Arizona’s Constitution,” the judge added.[xi]
Does this decision portend the demise of the clean zone, not only for future cities hosting the Super Bowl but also for other global mega-events? First, it is important to acknowledge that the constitutional analysis of commercial speech restrictions as applied in the instant case would only apply in the United States. Similar clean zone ordinances in host cities abroad would be subject to the free speech provisions of the respective venues and the host nation’s laws.
In terms of clean zone ordinances enacted in the U.S. as “required” in bid documents for Super Bowls, league All-Star Games, March Madness, and the like, it is difficult to see how such an ordinance could pass legal muster if challenged. The threshold issue would be proving that the clean zone is necessary to achieve a compelling governmental interest; it is tough to see how temporary signage (including inflatables, building wraps, etc.) displayed by official sponsors would not trigger concerns over aesthetics and public safety … but that of non-sponsors would? It would thus seem that if a sport property wants a clean zone ordinance to pass legal muster, it would at the very least need to restrict all temporary signage. Alternatively, it would be a non-starter for sport properties to come “clean” and posit that protection of its official sponsors from ambush marketing serves a compelling government interest.
Turning to the constitutional issue of delegation, it’s highly likely that any ordinance that turns over authority to the sport property and/or host committee to decide what temporary signage gets approved and what gets rejected will be fatally flawed. The sport property could perhaps overcome this hurdle by leaving the decision-making to the legislature who enacted the ordinance (with a wink-wink and a handy list of official sponsors!) but even this legal maneuver would still be subject to the constitutional hurdles with respect to prior restraints on speech.
It will be intriguing to watch what transpires with clean zone ordinances at future marquee sport events now that some legal precedent has been established by the Arizona court, and the Goldwater Institute is “on the case,” likely to pursue similar legal challenges in future Super Bowl host cities. Lawyers in the space around sponsorship and major sports events should take note of this intriguing legal development.
Professor Steve McKelvey, J.D., is Chair of the Mark H. McCormack Department of Sport at the University of Massachusetts Amherst, where he has taught sport law for 20 years. He has spent the past 25 years researching and writing about ambush marketing from a practical viewpoint gleaned from 15 years in the sport industry on both the property and agency side. He earned his J.D. from the Seton Hall School of Law.
John Grady, J.D., Ph.D. is a Professor of Sport and Entertainment Management at the University of South Carolina. His research is focused on intellectual property issues in sport, including ambush marketing prevention and sponsorship protection strategies. He tweets at @JGradySportsLaw.
[i] McKelvey, S. & Longley, N. (2015) Event-specific ambush marketing legislation for mega-sporting events: An economics perspective. International Journal of Sport Marketing & Sponsorship, 16(5), 349-364.
[ii] In the New Orleans lawsuit (Ciccarone v. City of New Orleans, 2013 U.S. Dist. LEXIS 32270, (United States District Court for the Eastern District of Louisiana March 8, 2013, Filed), the American Civil Liberties Union sued the city on behalf of a preacher and a political activist. The city removed the restrictions as part of settlement of the lawsuit and agreed not to restrict most forms of commercial and non-commercial speech, such as local businesses having a sign advertising their wares, but the city could still prohibit off-site and mobile advertising near the French Quarter, such as signs attached to a vehicle or worn by a person, according to the court filing.
[iii] Williams v. City of Arlington, No. 4:11-CV-093-Y (N.D. Tex. Oct. 11, 2011). Despite filing the lawsuit, the Super Bowl that year went by without any issues or challenges as it related to the clean-zone ordinances, except for some confusion about how the ordinance would be enforced, according to Sliffman, infra note endnote iv, discussing fn 15.
[iv] Ari J. Sliffman, Unconstitutional Hosting of the Super Bowl: Anti-Ambush Marketing Clean Zones’ Violation of the First Amendment, 22 Marq. Sports L. Rev. 257 (2011), at 277.
[v] Paulin v. Gallego et al., CV 2023-000409 (Superior Court of Arizona, Maricopa County. Feb 2, 2023).
[vi] Id. at page 2, citing to Phoenix Newspapers, Inc. v. Otis, 243 Ariz. 491, 495 (App. 2018).
[vii] See Nash v. Nash, 232 Ariz. 473, 481-82 (App. 2013)
[viii] For excellent legal analysis of the application of the commercial speech doctrine to clean zone ordinances, see Sliffman, infra endnote iv.
[ix] Paulin v. Gallego et al., p 5.
[x] Paulin v. Gallego et al., p. 3 citing Emmett McLoughlin Realty, Inc. v. Puma City, 203 Ariz. 557, 559 (App. 2002).
[xi] Id.
