Super Bowl LVII: Touchdown for Arizona Residents and the Freedom of Speech

By Tatum Weight. 

In a desolate land, thwarted by the scorching sun, spectators from surrounding nations convened by the masses. Some traveled by day and night, journeying thousands of miles to observe the annual phenomenon; others fixed their tents outside the arena, observing the contemporary ritual known as “tailgating.” As the deafening roars of the crowd inside grew, the whole world watched in great anticipation. 

In the United States, perhaps no sporting event is revered more than the Super Bowl, and this year’s game took place in Arizona. While hosting America’s beloved event is a great honor, it came at a certain price, threatening the constitutional rights of Arizona’s residents.

Leading Up to the Big Game

On October 12, 2022, the City of Phoenix adopted Resolution 22073 (“Resolution”), restricting temporary signage within the City’s designated “clean zone.” For residents within the “clean zone” to display any temporary signs, they had to seek approval from the NFL or the Arizona Super Bowl Host Committee. The designated “clean zone” covered nearly two square miles in the heart of Downtown Phoenix. The Resolution’s restrictions were intended to bind residents for a total of four weeks; three weeks before the 2023 Super Bowl and one week after. The City of Phoenix justified these restrictions on grounds that Arizona, as the host of the Super Bowl, would experience increased media exposure and revenues, and should consequently prohibit displays that are unfavorable to the NFL and its sponsors.

Bramley Paulin is a business owner with two of his properties located in the “clean zone.” Mr. Paulin sought to capitalize on the various Super Bowl activities taking place near his properties by executing leasing and advertising agreements with his business partners. Mr. Paulin’s attempts, however, have been futile. For instance, Mr. Paulin offered Coca-Cola’s Powerade brand the chance to use his property to advertise its products to the Super Bowl crowd despite not being an official Super Bowl sponsor, but Coca-Cola declined the offer because any advertising would be within the “clean zone.” Given the City’s newly adopted restrictions on “temporary signage” and the vague parameters of its enforcement, Mr. Paulin has not been able to execute a single agreement.

Down, Set, Hike: The Plaintiff’s Playbook

The Goldwater Institute, representing Mr. Paulin, sued the City of Phoenix, Mayor Kate Gallego, and City Manager Jeff Barton, alleging various violations of the Arizona Constitution in its complaint. Specifically, Mr. Paulin argues the Resolution violates his free speech and due process rights, as well as the separation of powers guarantees in the State Constitution. As such, Mr. Paulin asks the Court to declare the Resolution unconstitutional and to prevent the City from enforcing it.

Blitzing with the Freedom of Speech

The Constitution of Arizona provides, “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” The Arizona Supreme Court has recognized that the State Constitution guarantees broader free speech rights than the First Amendment. Nonetheless, both constitutions prohibit the government from unconstitutionally censoring speech, including messages displayed on signs or other advertising. Mr. Paulin argues the Resolution blanketly prohibits “temporary signage,” a protected form of speech, and there is no compelling state interest to justify its restrictions. As a result, Mr. Paulin claims he has sustained irreparable harm by not being allowed to freely exercise his free-speech rights.

Due Process of Law Scramble

The Arizona Constitution also states, “No person shall be deprived of life, liberty, or property without due process of law.” Due process violations may occur when laws are so vague that it is unclear what the law prohibits. Mr. Paulin believes the City’s Resolution is unconstitutionally vague because it does not provide measurable standards for the “temporary signage” approval process. Instead, the Resolution allocates boundless discretion to the NFL and Host Committee. 

While the Resolution itself does not define “temporary signage,” it refers to the City’s Zoning Ordinance which defines “temporary signage” as “[a]ny sign or advertising display intended to be displayed for a period of less than six months or for such period as may be established in a use permit.” Mr. Paulin contends that this definition is insufficient under the due process clause, namely because the Resolution “fails to give residents fair notice of how to comply with the law.”

Hail Mary: Separation of Powers 

Lastly, Mr. Paulin contends the City’s Resolution defies the constitutional decree for a government with separate powers by delegating authority to the NFL and Host Committee. In simple terms, Mr. Paulin asserts that the government cannot give the NFL the authority to tell people what they can and cannot say on their private property. A resolution may delegate limited authority, provided there are reasonably defined standards; however, this Resolution lacks any measurable standards according to Mr. Paulin. By granting private corporations “unfettered discretion” in regulating Arizona residents’ speech, the Resolution violates the State Constitution in an impermissible way.

In the Redzone…

On January 25th, the City repealed Resolution 22073. The new resolution that took its place was largely the same, but free of the provisions delegating censorship authority to the NFL and Host Committee. Mr. Paulin, however, was still unable to obtain the necessary permits to display temporary signs on his property. Accordingly, he argued this new resolution was unconstitutional in application because it would be impossible for him to complete the new approval process before the Super Bowl was over.

Touchdown!

The following week, Superior Court Judge Astrowsky ruled in favor of Mr. Paulin on all counts. The court determined the Resolution unconstitutionally restricted Mr. Paulin’s freedom of speech, violated his due process rights for lack of any procedural safeguards, and was an unconstitutional delegation of power to the NFL and Host Committee–unaccountable private actors. Most significantly, the court stated the City must consider Mr. Paulin’s application for temporary signage within 48 hours of receiving it, in lieu of the new approval process. Because the City caused the delay for Mr. Paulin’s application (by enacting an unconstitutional resolution), this immediate relief was justified.

Conclusion

The Kansas City Chiefs were not the only ones to score a monumental victory in Arizona. Mr. Paulin’s win against the City of Phoenix serves as a reminder that our constitutional rights must be protected and respected at all costs.