At a conference some years ago, I heard a law professor tell a silly but thought-provoking joke: Two friends manage to get Super Bowl tickets. On the morning of the game, they step out their hotel and hail a taxi. They tell the driver: “Take us to the Super Bowl.”
What makes the joke funny (to law professors, anyway) is the National Football League’s long-established habit of doing all it can to keep companies without formal licensing agreements far away from the Super Bowl. This includes the requirement that the host city establish by law a “clean zone” where the only visible advertisements, other than those that pre-exist, will tout the wares of its partners.
The league’s enforcement goes to the smallest detail. For example: According to ESPN, as Houston prepared to host the 2017 Super Bowl, the league demanded that food trucks lined up nearby paint over the makers’ logos on their tires, unless the tires were made by Bridgestone, the NFL’s official partner. Want more? Consider that the league has the option of installing at the Super Bowl site ATM machines that will accept only cards from official partners.
But that established practice might be changing. This time around, an Arizona superior court judge has held unconstitutional the clean zone created in Phoenix, at least as applied to private property owners.
In striking down the ordinance, Judge Bradley Astrowsky explained that the clean zone represented an unconstitutional delegation of power from government to private entities, and that it violated the free speech rights of the property owner. The decision rested principally on Arizona’s own constitution, but most of Astrowsky’s persuasive reasoning would apply easily to a federal First Amendment claim as well.
The NFL didn’t invent the clean zone, which has long been a tactic used by everyone from the NCAA to the Olympics to World Rugby to protect their official sponsorship agreements by preventing what’s nowadays called “ambush marketing” — the sudden appearance amidst the crowds of a hat or a sign or a truck bearing an unapproved logo. What makes the partnerships valuable is precisely the captive audience: people who throng to the site for a sporting event and will see the approved advertising. If competitors can also gain eyeballs without paying a fee, companies will pay less for the coveted stamp of approval. Thus the clean zone, where advertisers are guaranteed that only their own logos will be seen.
But common as clean zones may be, the NFL’s version seems ... extreme. The ban on unapproved signs includes the area not only near the stadium itself but also around the hotels used by the league and the venues for other authorized events.
Small wonder that critics have long argued that the clean zones demanded of host cities are unconstitutional. With respect to most forms of speech, this would seem obvious. That’s why a federal court in Texas held in 2020 that the San Antonio ordinance establishing a clean zone around the 2018 NCAA Final Four site was unconstitutionally vague, and that the use of the ordinance to prohibit distribution of religious literature within the zone violated the plaintiff’s rights. The city of New Orleans, after being sued in 2013, agreed not to enforce its Super Bowl clean zone against noncommercial speech.
But what about commercial speech? After all, the NFL’s main concern is advertising — specifically, advertising by companies other than its partners.
Here, too, the clean zone is on weak constitutional ground. Even though commercial speech enjoys less First Amendment protection than expression of other kinds, a blanket prohibition of signs in a particular vicinity unless approved by a private entity would seem to be a clear violation.
That was essentially the argument made by Bramley Paulin, the plaintiff in the Arizona case. Paulin owns property near a Phoenix public park that’s being used for a variety of pre-Super Bowl activities. (The game itself is being played in Glendale, some 18 miles away.) He wanted to make some money by erecting signs on his property and selling the space to advertisers. Alas, it was not to be.
Here Judge Astrowsky provides an example: “Plaintiff communicated with Coca-Cola, but it was not willing to enter into any agreements with him because Plaintiff’s property was in an area that required NFL or Host Committee approval for any such advertisements.”
See the problem? Coca-Cola didn’t say “We have no interest in putting up an ad where Super Bowl crowds will see it.” According to the court, what Coca-Cola said boiled down to, “You’d have to get NFL or Host Committee approval.”
The point is that the NFL and the Host Committee are both private entities. But their ability to prevent the display of a commercial sign on private property stems entirely from the action of the city council. Put otherwise, the ordinance delegates to the NFL and the Host Committee the power to veto or approve signs within the clean zone, even when the signs are erected on private property.
After Paulin filed his lawsuit, the city revoked the ordinance and replaced it with another that did not require approval from any private entity. But when Paulin filed an application under the new ordinance, he was told that approval would take four to six weeks; that is, until long after the Super Bowl crowds had gone home. In the meanwhile, he remained free to — get ready for it! — seek permission from that same Host Committee, which had the option of allowing him to erect his sign under its permit.
Here Astrowsky added a useful caution that most of the reporting has missed: “This does not mean that the Super Bowl Host Committee is evil or has any evil intent.” True enough. This also applies to the NFL. There’s nothing wrong with trying to maximize the value of one’s intellectual property, or of demanding a lot from a potential host city that believes (whether or not correctly) that it’s going to earn huge revenues from fans who attend the game. But when that effort requires the cooperation of the government, the parties must take care not to violate the Constitution.
Don’t get me wrong. I’m not anti-football. I’ve loved the sport ever since my mother took me to my first game just after my 13th birthday. But I love the First Amendment more. And Super Bowl host cities should too.
More From Stephen L. Carter at Bloomberg Opinion:
• Alec Baldwin Manslaughter Charge Is a Stretch
• ‘Woke’ Is a Political Term With a Long and Complicated History
• For Effective Police Reform, Start Small
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
More stories like this are available on bloomberg.com/opinion
©2023 Bloomberg L.P.