Got Something To Sell (Or Say) During Super Bowl LII? Better Be Careful Where You Sell (Or Say It)

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For reasons that will perhaps forever defy explanation, the NFL agreed to send its top executives, players and coaches to Minnesota in the dead of winter. Though we may never know how that decision was made, we do know some of the NFL’s requirements before awarding its marquee event to the Twin Cities. In particular, the NFL required that Minneapolis create a “clean zone,” – an area in which the sale of merchandise, displays of signs and banners, and other commercial and speech activities are subject to additional regulation – encompassing large areas of the city.

Such “clean zones” have become a common feature of large-scale events around the country. Typically, an event organizer, like the NFL or MLB, requires the city hosting the event to enact special licensing or permitting requirements on what people can sell, do, or say in or around the events. Controversially, such laws often allow for input (in varying degrees) from event organizers, opening up questions about what level of control or influence is appropriate for a private entity to have over people and businesses in a city that happens to be hosting an event.

Though the most obvious targets of such laws are people hawking merchandise on the street and the prevention of so-called “ambush marketing,” the laws also impact local businesses caught within the confines of the “clean zone.” This has led to, for example, restaurants and bars being required to comply with restrictions on how they advertise, even when their promotions have nothing to do with the event.

Unsurprisingly, civil rights groups have followed the development of such laws closely, and occasionally challenged their scope, including here in Minnesota.

In 2014, MLB planned to hold its All- Star game in Minneapolis. As part of the planning for the event, MLB insisted on the creation of a broad “clean zone” around event venues. The Minneapolis City Council passed a “clean zone” resolution that applied from 10 days before the game until five days after it. The law also gave MLB the express right to approve licenses. The ACLU of Minnesota filed a suit in federal court arguing that Minneapolis had unconstitutionally given MLB the ability to deny permits. Ultimately, the city of Minneapolis revised its “clean zones” to cover a smaller area, among other adjustments, and the ACLU dismissed the suit.

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In awarding Super Bowl LII to Minneapolis, the NFL reportedly required a similar “clean zone,” which the Minneapolis City Council created in November 2017 by passing Action Number 2017A-0854. The law gives the Business Licenses Division of the Minneapolis city government the authority to establish a “Designated Large Event Zone during Super Bowl LII[.]”

In particular, the law requires licenses or permits for the following (non-exhaustive) list of activities/speech within the Designated Large Event Zone: amplified sound, banners, inflatable displays, signs, temporary structures, and tents.

The city’s “Background Analysis” of the restrictions states that between Jan. 26 and Feb. 5 the Business Licenses Division will establish the zone “where temporary sales, vending, entertainment, signage and related special event permits may be approved or issued by the City of Minneapolis after conferring with the NFL.” (emphasis added).

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The “after conferring with the NFL” clause has raised eyebrows. The requirements enacted by the city appear to give the NFL at least some influence – though the extent of that influence and exact process to be followed is unclear – over what can be sold, said, or done, during the Super Bowl throughout much of downtown Minneapolis. The website describing the licensing requirements, however, instead highlights that the city government retains its “full authority” to grant or deny applications for any temporary permits or licenses and that “constitutional rights will preempt all other considerations.” It remains to be seen if a nod to constitutional protections is enough to overcome some of the fundamental problems that can arise when a private entity gets a say – the extent of which is unknown – over how a city makes licensing decisions.

This issue is not limited only to the 2018 Super Bowl: Minneapolis is also hosting the 2019 NCAA Final Four Tournament and if recent history is any guide, Minneapolis will soon have a Final Four related “clean zone” law as well. While there presently seems to be limited public concern in Minnesota over the creation of the “Designated Large Event Zone” for the Super Bowl, the continued use of “clean zones” presents opportunities for a blurring of the lines between the desires of corporations to control their products, images and reputations, and the interests of a city in protecting the constitutional rights of its citizens. Free-speech and business advocates will be watching Super Bowl LII closely, just like the rest of us, though maybe for different reasons. Norman H. Pentelovitch

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