City Of Phoenix Engages In Insane Protectionism On Behalf Of The NFL
We're a tad early for our annual season in which we point out that the NFL likes to play make believe as to its trademark rights for the Super Bowl. You can go read through the history of our posts on the topic, but essentially the NFL seems to think that its trademark rights allow it to control more strictly any commercial operations' mere mention that this game exists than it actually can. The First Amendment is a thing, you see, and trademarks cannot keep every business from mentioning any reference to the Super Bowl without the NFL's permission. Certainly it can pick official sponsors and exert some control over whether businesses can suggest an association with the league or the game, but it cannot, for instance, tell a local bar that it can't tweet out a special on drinks during the Super Bowl on game day.
But the NFL pretends otherwise. And it appears to have found a partner in the city of Phoenix for one of the most bonkers examples of government censorship and prior restraint I can recall. See, Phoenix has setup a clean zone" within the city that requires anyone wanting to post any new signage to get approval for that from the city... and the NFL.
Property owners in Phoenix are objecting to a new downtown Clean Zone" that requires them to get permission from city hall, the National Football League (NFL), and/or a private Super Bowl host committee in order to display temporary signage and advertisements in the run-up to the game. In October, the city passed a resolution creating its Clean Zone" in downtown. Within that area, property owners are required to get a city permit for temporary signage as well as the approval of the NFL and/or the Arizona Super Bowl Host Committee.
It's a blanket prior restraint on speech," says John Thorpe, an attorney with the free market Goldwater Institute. There are no guidelines, no criteria they give for what the NFL or the [Arizona Super Bowl Host] Committee are allowed to base their decisions on."
Thorpe is exactly correct and there is zero chance any of this would survive litigation on First Amendment grounds. Notably, this resolution was passed so late in the game that there is potentially not enough time for litigation to even occur. The city has decided to so completely prostrate itself before the almighty NFL that it is giving the league veto power on any new signage that would go up from local businesses, which are ostensibly the city's actual constituents.
Given that the NFL likes to play pretend with its rights, you can absolutely see where this is going. No signage that has anything mentioning the Super Bowl will be allowed by non-sponsors. Likely any references to the game by other name would also result in a complaint or rejection. This. Is. Nuts.
Thorpe has sent a letter to the city, but the city has already trotted out its bullshit talk-track that this is all about protecting local business owners as well as the NFL's trademark rights.
The intent is to protect local businesses from ambush' or guerrilla' marketing attempts during the event period," according to a fact sheet on the Clean Zone.
At a Super Bowl small business workshop in November, a city staffer also said that the purpose was to protect consumers from unlicensed merchandise" and official Super Bowl sponsors from unauthorized competition.
The NFL sponsors are making a huge financial commitment to be one of those designated sponsors, and we need to provide that protection to those sponsors in the downtown area where a lot of the Super Bowl events are happening," said the staffer.
We really wanted the game to be played here!" is not a justification for a city law that blatantly violates the First Amendment in about as clear a manner as possible. For all signage speech to have to pass a permit process is about as clear cut as it gets.
The open question is whether anyone can do anything about it before mid-January, when the law takes effect.