From the Maricopa County (Arizona) opinion of Judge Bradley Astrowski in Pauline v. Galicianstated on February 3rd, but just posted on Westlaw:
The beginning of this dispute began on October 12, 2022, when the Phoenix City Council … passed 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 permits the use of temporary signs that would not otherwise be permitted in the downtown area, pursuant to the Phoenix Zoning Ordinance, Section 705.F.1.b. However, Resolution 22073 added to the normal sign approval process a requirement that all temporary signs must be approved by the NFL or the Arizona Super Bowl Host Committee…
Plaintiff owns two properties in downtown Phoenix, including a property at the intersection of 1st Street and Moreland, near Margaret T. Hance Park. As part of the Super Bowl celebration, downtown Phoenix will host several days of festivities, 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 wants to place temporary signage on its property, specifically that near Hance Park, to take advantage of the high public visibility any sign would receive during the Super Bowl celebration. Plaintiff began considering using its property for this purpose shortly after the City passed Resolution 22073. For example, Plaintiff had been communicating with Coca-Cola, but it was unwilling to enter into any contracts with him because Plaintiff’s property was in an area required by the NFL or the approval of the Host Committee for such advertisements…
The plaintiff sued and won:
Plaintiff … argued that Resolution 22073 was a prior restraint because it prospectively prohibits the expression of any message until it has been reviewed and approved by a private third party. This makes it a content-based speech restriction. The court agrees.
The Court also agrees that Resolution 22073 is an unconstitutional delegation of governmental authority. A law, ordinance, or resolution may delegate governmental authority only if it “contains reasonably clear standards governing the exercise of the authority and … procedural protections in the form of a right of review exist.” Schecter v. Killingsworth (Ariz. 1963). The resolution does not provide standards that would guide the discretion of decision makers. It was also unconstitutional for the City to delegate this authority to an irresponsible private actor. “[I]it is a well-established theory that the legislature may not delegate its authority to private persons over whom the legislature has no supervision or control.” The Court finds that the delegation of authority to an irresponsible third party is completely contrary to the principles of limited government contained in the Arizona Constitution. See Arizona Constitution, 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 instituted to protect and maintain individual rights. “)….
Without the Court’s intervention, the application of the Decision is an unconstitutional substantive prior restriction of speech. Given the timing of the Resolution, which is dictated by the City’s discretion, Plaintiff can only apply for a temporary sign if approved by the Host Committee—an entity interested in protecting the NFL and NFL sponsors. This does not mean that the Super Bowl Host Committee is evil or has evil intentions. However, this does not mean that the plaintiff has no way of guaranteeing that his speech request will be granted in a content-neutral manner at this time, without court intervention. The city has therefore established circumstances in which a private entity is given the authority to make content-based speech decisions. 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 granted special privileges by the government. Courts have recognized two important governmental interests that can sometimes justify commercial sign regulations: public safety and aesthetics. The government, not the plaintiff, bears the burden of proving that the restriction serves those purposes with an appropriately narrow cut, and it has not done so.
Furthermore, the applied Resolution violates plaintiff’s due process rights under the Arizona Constitution, as it fails to establish minimum procedural safeguards. The host board cannot allow the claimant to revert to his or her operating license for good reason or for no reason at all. The host committee is not obliged to inform the claimant of its reasons, and the claimant has no way to reconsider its decision….
IT IS ORDERED that the City will consider Plaintiff’s requests for temporary signs using the Host Board’s existing use permit and approve or deny Plaintiff’s requests in accordance with its normal, content-neutral rules for temporary signs in the Special Promotional and Civic Event Zone. The city will make a decision on the plaintiff’s requests within 48 hours of receiving them….
Congratulations to John Thorpe (Goldwater Institute), representing the plaintiff.