FREE SPEECH FUMBLE: Phoenix ordinance restricting signs during Super Bowl is offsides on the First Amendment

UPDATE (Feb. 3, 2023): An Arizona trial court judge ruled that a Phoenix city ordinance that prohibits residents and businesses in the downtown area from posting signs without first getting approval from the NFL and the Host Committee is unconstitutional.  According to The Goldwater Institute, which filed the lawsuit on behalf of a local business owner, "the freedom of speech protected by the state and federal constitutions includes the right to put up signs. And for centuries, courts have been particularly hostile to so-called prior restraints — that is, laws that force people to get government permission before they can speak. Prior restraints, as the judge declared in today’s order, are 'the most serious and the least tolerable infringement on free expression.' But the Super Bowl Censorship Ordinance was obviously a prior restraint because it required pre-approval before anyone could put up a sign."

The city of Phoenix has 48 hours to comply with the court order.

UPDATE (Jan. 17, 2023): The owner of two properties affected by Super Bowl signage restrictions in downtown Phoenix has filed a lawsuit against the city. "The city of Phoenix is letting the NFL decide what I can and cannot say on my own property. That's not right," said Bramley Paulin in a press release published by The Goldwater Institute, which filed the lawsuit on his behalf. FIRE will monitor this lawsuit as it moves forward.

Did you know that when the Super Bowl comes to town, the National Football League has the authority to determine what signage is and is not permissible to display on your private property? 

If you think that sounds like a dystopian rule that violates the First Amendment, you’re right. But that’s the reality facing businesses across much of downtown Phoenix, Arizona, after the city council passed a resolution establishing a “clean zone” that requires property owners to apply for a permit to display “temporary signage,” which the city defines as “anything that is not physically built into your business,” such as posters, flyers, banners, pennants, flags, window paintings and even balloons.

Sorry parents, but the decorations for your kid’s birthday party will now need the approval of the NFL and the Arizona Super Bowl Host Committee.

In response to the city’s “blatant, unconstitutional attack on free speech,” the Goldwater Institute sent a letter to the city of Phoenix urging it to reconsider the “clean zone” policy and allow businesses to “advertise on [their] property without unreasonable restriction and without any input or review by the NFL or the Super Bowl Host Committee.”

The Super Bowl “clean zone,” which the city calls a “special promotional and civic event area,” encompasses nearly two square miles of downtown Phoenix, where signage restrictions will be in place from Jan. 15 to Feb. 19. Clean zones are nothing new for cities hosting the Super Bowl. Tampa implemented a clean zone in 2021. But that doesn’t mean these rules are constitutional.

“The City’s restriction on temporary signage violates state and federal constitutional provisions protecting freedom of speech, as it is overbroad, a prior restraint, and a content- based regulation,” wrote Goldwater Institute attorney John Thorpe in a letter to the city of Phoenix. “The ordinance also violates constitutional guarantees regarding due process and improper delegation of government power by broadly authorizing two private entities . . . to regulate private citizens’ speech with unfettered discretion and no procedural safeguards.”

FIRE joins the Goldwater Institute in calling on the city of Phoenix not to commit a neutral zone infraction by encroaching upon its residents’ free speech rights.

Although the city of Phoenix casts the “clean zone” restrictions as benevolent measures that will “protect local businesses from ‘ambush’ or ‘guerrilla’ marketing attempts during the event period,” in reality this is government-sponsored censorship that violates individual liberties.

Writing on behalf of Phoenix resident Bramley Paulin, a business owner with property in the “special promotional and civic event area,” the Goldwater Institute states in its letter that Paulin was unable to lease a property because of the signage restrictions. The organization seeks assurances from the city that it will not enforce the policy — otherwise, Goldwater Institute warns it will pursue a “legal remedy” to protect Paulin’s rights.

FIRE joins the Goldwater Institute in calling on the city of Phoenix not to commit a neutral zone infraction by encroaching upon its residents’ free speech rights.