The Goldwater Institute scored a major victory for residents and business owners in downtown Phoenix this morning when an Arizona trial court judge ruled that the city’s Super Bowl Censorship Ordinance violated their free speech rights and unconstitutionally delegated power to the National Football League (NFL) and Super Bowl Host Committee.
The ruling came just weeks after the Goldwater Institute sued the city over the ordinance, which barred residents from placing signs on their own property without first getting approval from the NFL and the Host Committee—two private entities that were empowered to choose what kind of speech people were allowed to engage in. Declaring the ordinance “an unconstitutional prior restraint on speech and an unconstitutional delegation of power,” the court gave the city 48 hours to review businessman Bramley Paulin’s request to put up an advertising sign at his business—and to do so without restricting what he’s allowed to say.
Phoenix officials first adopted the Super Bowl Censorship Ordinance last fall, declaring a section of downtown a “clean zone” in which people were prohibited from putting up a sign without having it reviewed and approved by the NFL and the Host Committee. Because those are private businesses, though, the ordinance effectively gave for-profit companies the unrestricted power to choose what messages they were willing to allow in a large section of one of the nation’s biggest cities. Bramley, a business owner in the area, hoped to sell space for advertising signs to businesses—but they shared concerns regarding the city’s prohibition on free speech.
That’s unconstitutional for many reasons. For one thing, the government isn’t allowed to give its power away to private parties—something lawyers call “delegation.” Yet Phoenix was giving the Committee and the NFL the power to decide what signs could be posted. “Handing over power to an unaccountable third party is totally antithetical to the principles of limited government enshrined in Arizona’s Constitution,” the judge declared in today’s order.
For another thing, laws aren’t allowed to be vague—because otherwise, people wouldn’t be able to tell what they can and can’t do. But the Super Bowl Censorship Ordinance contained no rules explaining what kinds of signs were permitted. This, too, the judge found unconstitutional; the ordinance, he observed, “provides no standards to guide decision-makers’ discretion.”
But most importantly of all, 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.
When Bramley sued the city, asking a judge to declare the ordinance unconstitutional, the city assured him that it would change the law. So Bramley agreed to a brief postponement of the lawsuit, expecting the city to repeal the ordinance and respect freedom of speech. But that’s not what happened. Instead, city officials simply moved the goalposts. They changed the ordinance to eliminate the NFL’s power to directly approve signage. But through its permitting process, the city indirectly still allowed the Host Committee—which, like the NFL, is a private business—the same power to approve or disapprove of messages. So, Bramley returned to court, and in a brief trial on Wednesday morning, proved that the city was unconstitutionally restricting his freedom of speech.
“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,” the judge ruled.
“I’m relieved the court has ruled against the city’s attempt to let private organizations decide what I can and cannot say on my own property,” Bramley said after hearing this morning’s news. “The city should have never allowed this to happen in the first place: it’s wrong for the government to let the NFL and other private groups censor business owners like me, or any residents of the downtown area.”
The case was especially urgent because the Super Bowl is now only days away, meaning that each hour reduced Bramley’s ability to put up the advertising signs. In fact, due to the city’s attempts to run out the clock, he has already lost some potential contracts, although other advertising opportunities still remain. Given the approaching deadline, Bramley asked the court to order the city to process his application for a sign immediately—without requiring Host Committee approval. The judge agreed. “The City shall make a decision concerning Plaintiff’s applications within 48-hours,” this morning’s order declares.
Freedom of speech—including the right to advertise—is one of our most basic constitutional values. As the big game approaches, it’s refreshing to see our constitutional rights start the festivities with a clean touchdown.
You can read the ruling here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
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