Opinion by Judge Bradley Astrosky from Maricopa County (Ariz.). Pauline v. GalicianHanded in on February 3rd but just posted on Westlaw:
The origins 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 in accordance with the Phoenix Zoning Ordinance, Section 705.F.1.b, which is not generally permitted in the downtown area. However, Resolution 22073 added to the normal sign approval process the requirement that all temporary signs be approved by the NFL or the Arizona Super Bowl Host Committee.
Plaintiff owns two pieces of property in downtown Phoenix, including Margaret T. Hance Park has a property at the intersection of 1st Street and Moreland. In celebration of the Super Bowl, downtown Phoenix will host a multi-day festival, including a music festival and an “NFL Experience” event at Hance Park. More than 1.5 million people are expected to attend these events. Plaintiff intends to place temporary signage on its property, particularly near Hance Park, to take advantage of the high public visibility of any signage during Super Bowl festivities. Plaintiff began using his property for such purposes shortly after City Resolution 22073 was passed. For example, the plaintiff contacted Coca-Cola, but was unwilling to enter into a contract with them because the plaintiff’s property was in an area that required the NFL. or approval of the host committee for any such advertisement…
The plaintiff sued and won:
Plaintiffs … allege that Resolution 22073 was a prior restraint because it prohibits potentially disclosing any message until it has been reviewed and approved by a private third party. It creates content-based restrictions on speech. The court agreed.
The Court also agrees that Resolution 22073 is an unconstitutional delegation of governmental power. A statute, ordinance, or resolution may confer governmental power only if it “contains reasonably specific standards governing the exercise of the power and … provides procedural safeguards in the nature of a right of review.” Schecter v. Killingsworth (Ariz. 1963). The resolution does not provide any standard for the discretion of decision makers. It was also unconstitutional for the City to delegate this power to a private private actor. “[I]It is a well-established theory that a legislature may not delegate its authority to private individuals over whom the legislature has no supervision or control.” The Court found that the transfer of power to an unaccountable third party was diametrically opposed to the principle of limited government. Enshrined in the Arizona Constitution. See Ariz. Constitution Art. II, § 2 (“All political power is vested in the people, and governments derive their just powers from the consent of the governed, and are instituted to protect and maintain private rights.”)….
Without court intervention, the application of the resolution is an unconstitutional prior restraint on content-based speech. At the time of the resolution, which was determined by the City’s discretion, the plaintiff could only submit a temporary sign application with the permission of the host committee—an entity interested in protecting the NFL sponsor and the NFL. This does not mean that the Super Bowl host committee is bad or has any bad intentions. However, this means that the plaintiff has no means by which he is guaranteed to grant his request for speech in a content-neutral manner at this time without court intervention. CT, therefore, creates a situation in which an individual entity is empowered to make content-based decisions about speech. There is no legitimate government interest in content-based regulation of marks, let alone regulation of marks based on the content preferences of private businesses privileged by the government. Courts have recognized two significant government interests that can sometimes justify regulation of commercial marks: public safety and aesthetics. The government, not the plaintiff, bears the burden of proving that the restriction met these goals through appropriate narrow tailoring, and it did not.
Furthermore, the enforced resolution violates plaintiff’s right to due process under the Arizona Constitution, as it fails to establish minimum procedural safeguards. The host committee may not permit plaintiffs to piggy-back on their use permit with or without good cause. The host committee is not required to advise the plaintiff of their reasons, and the plaintiff has no way to review their decision….
It is ordered that the City consider Plaintiff’s temporary sign applications using existing Host Committee use permits and approve or deny Plaintiff’s applications subject to general, content-neutral rules for temporary signage in a special promotional and civic event zone. The City will decide within 48 hours of receiving plaintiffs’ applications…
Congratulations to John Thorpe (Goldwater Institute), who represents the plaintiff