The Volokh Conspiracy
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Phoenix's Delegation to NFL of Power Over Signs Near Super Bowl Violated First Amendment, and
was an unconstitutional delegation of government power, an Arizona trial judge held.
From Maricopa County (Ariz.) Judge Bradley Astrowsky's opinion in Paulin v. Gallego, handed down Feb. 3 but just posted on Westlaw:
The origin of this dispute began on October 12, 2022, when the Phoenix City Council … adopted Resolution 22073. The purpose of the resolution was to establish a Special Promotional and Civic Event area in downtown Phoenix to support events and activities related to Super Bowl LVII. This Resolution permitted the use of temporary signs that would ordinarily not be permitted in the downtown area, consistent with Phoenix Zoning Ordinance, Section 705.F.1.b. However, Resolution 22073 added to the ordinary sign approval process the requirement that all temporary signs needed to be authorized by the NFL or the Arizona Super Bowl Host Committee ….
Plaintiff owns two pieces of property in downtown Phoenix, including a property at the intersection of 1st Street and Moreland, near the Margaret T. Hance Park. In celebration of the Super Bowl, downtown Phoenix will host multi-day festivities, including a music festival and an "NFL Experience" event at Hance Park. Over 1.5 million people are expected to attend these events. Plaintiff desires to erect temporary signage on his property, particularly the one near Hance Park, to take advantage of the high public visibility any signage would garner during Super Bowl festivities. Plaintiff began looking into using his property for such purpose shortly after the City passed Resolution 22073. For 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….
Plaintiff sued and prevailed:
Plaintiff … alleged that Resolution 22073 was a prior restraint because it prospectively forbids the expression of any message until it is reviewed and approved by a private third party. This makes it a content-based restriction on speech. The Court agrees.
The Court also agrees that Resolution 22073 is an unconstitutional delegation of government power. A statute, ordinance, or resolution may delegate governmental power only if "it contains reasonably definite standards which govern the exercise of the power, and … procedural safeguards in the nature of a right of review are provided." Schecter v. Killingsworth (Ariz. 1963). The Resolution provides no standards to guide decision-makers' discretion. It was also unconstitutional of the City to delegate this power to an unaccountable private actor. "[I]t is a well-established theory that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control." The Court finds that handing over power to an unaccountable third party is totally antithetical to the principles of limited government enshrined in Arizona's Constitution. See Ariz. Const. art. II, § 2 ("All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.")….
Without Court intervention, the application of the Resolution is an unconstitutional content-based prior restraint on speech. Given the timing of the Resolution, which was dictated by the discretion of the City, Plaintiff may only submit a temporary sign application if permitted by the Host Committee—an entity interested in protecting NFL sponsors and the NFL. This does not mean that the Super Bowl Host Committee is evil or has any evil intent. However, it does mean that Plaintiff has no manner in which he is guaranteed to have his request for speech to be approved in a content-neutral way at this time, without Court intervention. The City, hence, set up a circumstance in which a private entity is given the authority to make content-based decisions on 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. Courts have recognized two substantial government interests that can sometimes justify regulations on commercial signage: public safety and aesthetics. The government, not the Plaintiff, bears the burden of proving that the restriction serves these ends with proper narrow tailoring, and it has not done this.
Furthermore, the Resolution as applied violates Plaintiff's rights to due process under the Arizona Constitution, because it fails to establish minimum procedural safeguards. The Host Committee may not permit Plaintiff to piggy-back onto their use permit for good cause or for no reason at all. The Host Committee is not required to advise Plaintiff of their reasons, and Plaintiff has no avenue to review their decision….
IT IS ORDERED the City shall consider Plaintiff's temporary signage applications utilizing the existing Host Committee's Use Permit and approve or deny Plaintiff's applications subject to its ordinary, content-neutral rules for temporary signage in a Special Promotional and Civic Events zone. The City shall make a decision concerning Plaintiff's applications within 48-hours of receiving same….
Congratulations to John Thorpe (Goldwater Institute), who represents plaintiff.
