Keeping it Clean in Houston: Hosting Major Sporting Events and Clean Zone Ordinances

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Kevin Braig

Now that the sun has set on Super Bowl 50—and probably on the career of sure Hall of Fame quarterback Peyton Manning as well–Houston anxiously awaits the opportunity to host the 2017 event, as well as the NCAA Men’s Final Four in April.

Events like the Super Bowl and the Final Four are the culmination week-long extravaganzas celebrating sport and the teams participating in the big games. Those viewing the games, either at home or in person will observe copious amounts of advertising and promotions leading up to, and during the game itself.  For people watching at home, interaction with advertisements and promotions tied to the Super Bowl is limited to the commercials everyone looks forward to, and to the promotional sponsorships of the game (i.e. The Pepsi Super Bowl Halftime Show). People who are privileged enough to attend the game in person encounter many different forms and modes of advertisements and promotions in the host city, around the stadium, and in the stadium.

The power of host cities and entities such as the NFL and NCAA to regulate advertising and promotion in public areas surrounding the stadiums and arenas is unclear, particularly after the Supreme Court’s 2011 decision in Sorrell in IMS Health Inc., in which the Court appeared to come close to extending protection long-afforded political speech to commercial speech.

Nevertheless, as a condition precedent to being awarded big events, sports entities continue to require host cities to enact “clean zone” ordinances that apply to the areas surrounding the venues. These ordinances regulate certain commercial and advertisement activities in the vicinity of the stadium. Generally, the ordinances require vendors, merchandisers, and restaurants to obtain a permit from the sports entity to conduct business in the week leading up to the game.

For example, in order to secure Super Bowl 50, Santa Clara enacted Ordinance No. 1946, which created a clean zone in the vicinity of Levi’s Stadium from February 1st until February 9th. The ordinance prohibited any commercial activity in public streets, outdoor sale of food or beverage except for establishments with permits, outdoor sale or distribution of merchandise except for establishments with permits, commercial vending from a mobile unit, sale or distribution of counterfeit merchandise, and the distribution of free products, commercial services, or promotional giveaways in the area designated as the “clean zone.”  Ordinance No. 1946 also governed the size of musical equipment permitted in the area. San Jose and San Francisco, the other two cities who hosted activities in connection with Super Bowl 50, enacted similar ordinances for their downtown areas.

A clean zone ordinance can go too far and also may  have an effect on political speech. Depending on the specific language, an ordinance might restrict the type of political speech that First Amendment protects, even in a clean zone. For instance, before Super Bowl XLVII between the Baltimore Ravens and San Francisco 49ers, the ACLU challenged New Orleans’ clean zone ordinance as an overly burdensome and impermissible restriction on noncommercial speech. A federal judge found that the geographic area the ordinance sought to regulate exceeded the zone necessary to promote the government’s interest and issued a temporary restraining order limiting the scope of the ordinance. New Orleans was still able to regulate noncommercial speech in the immediate area surrounding the Mercedez-Bens Superdome where the game was played and in the area of the neighboring New Orleans Arena.  However, the Court held the city and the NFL were not entitled to restrict noncommercial speech in areas beyond that significantly smaller zone.  In limiting the reach of the clean zone, the court found that the ordinance was more intrusive than necessary because it regulated signs that contained political or religious speech in areas where limitations on speech were not justified, such as the French Quarter.

Temporary clean zone ordinances are common when cities hold big events.  These ordinances likely are legal if narrowly tailored. But issues can arise if  a host city—such as Houston, who is poised to be the USA’s next sports hub—enacts an ordinance that is more restrictive than necessary.

For more information, please contact attorney Kevin Braig at kbraig@slk-law.com.  This article was co-authored by Kevin Braig and sports intern, Brett Schuelke.

 

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