Free Speech and The Super Bowl

by Winthrop & Weinstine, P.A.
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Litigation and the Super Bowl go together in modern America like litigation and, well, anything (e.g. tattoos, Bill Russell) in modern America. But since the Super Bowl is on most of our radars for the next few days, litigation and the Super Bowl it is.

As we all (hopefully) know, the freedom of speech in America is protected by the First Amendment. As the classic screaming-fire-in-a-crowded-movie-theater example illustrates, however, that doesn’t give someone the right to say anything they want, wherever they want, certain restrictions can apply.

Enter so-called “free speech zones.” This lovely Orwellian concept allows the government to create certain zones within public areas where free speech is generally allowed, while limiting the rest of the public space to whatever the government approves of.

Despite the relatively docile sounding name, the picture above indicates how accommodating the government makes these things – the Ritz-Carlton they are not (this example from the 2004 Democratic Convention). These zones seem like a great idea when they involve, for example, Fred Phelps and the rest of his Westboro Baptist Church knotheads being relegated to a location far away from whatever soldier/child/Ronnie James Dio funeral they decide to spew vile towards. Things get a little trickier when the government uses the zones to advance commercial interests.

As a requirement to hosting a Super Bowl, the NFL typically requires the hosting city, in this case New Orleans, to implement what amount to free speech zones. (The zones were perhaps more important than usual due to the fact that NFL Commissioner Roger Goodell is widely despised in New Orleans as a result of the bountygate scandal which found Goodell suspending a number of New Orleans Saints, without, the people of New Orleans think, much in the way of due process. For an example of the very NSFW welcome Goodell received earlier this week, Deadspin has you covered.)

When New Orleans created its zone, which covered the French Quarter, Faubourg Marigny, and the Central Business District from January 28th through February 3rd, some local residents and the ACLU cried foul and filed suit. According to the city, anyone wishing to display things like signs, banners, or flags within the zone needed to apply for a permit. The permits, however, were only available to NFL sponsors and others approved by the league.

The ACLU and the city of New Orleans reached a settlement on Monday, which severely limited the reach of the zone. The agreement provides that the rules only apply to commercial speech (which has fewer constitutional protections than other forms of speech) and limits the amount of advertising that must be associated with the NFL. Sources report that many in the French Quarter celebrated the settlement without even knowing about it or the underlying dispute.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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