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City forced to protect free speech in NFL Clean Zone

11th February 2013   ·   0 Comments

By Susan Buchanan
Contributing Writer

A clash over free speech in a wide area surrounding the Mercedes-Benz Superdome erupted before this month’s Super Bowl XLVII. The National Football League and the City set up a nine-day Clean Zone from late January to February to control advertising across downtown, the French Quarter into the Marigny and over to the West Bank. The Bowl infused the region with outside money but critics found the Clean Zone’s rules harsh and the zone’s name disparaging. A lawsuit by the ACLU Foundation of Louisiana against the City was followed by a late January settlement that softened the zone’s original restrictions.

Sanitized areas are business as usual for NFL Super Bowls. Last week, Brian McCarthy, NFL spokesman in New York, said the first time a host-city, Clean Zone was established before a Bowl game was at least ten years ago. “The purpose is to prevent ambush marketing, to protect shop owners and establishments that are playing by the rules, and to create an uncluttered area for fans to walk around,” he said.

When asked if NFL Clean Zones are related in anyway to homeland security, McCarthy said “No. But they do help with public safety by limiting the number of pop-up tents and areas,” making it easier for fans to navigate.

According to the New Orleans Super Bowl Host Committee, concerns about “ambush marketing” before the city’s Feb. 3 Bowl referred to unauthorized signage, tents, outward-facing marketing and vending of merchandise by anyone other than NFL-approved sponsors. In an ordinance enacted by the City Council last summer and amended in December, temporary signs approved by the City for the zone were to have “at least a 60 percent Super Bowl-NFL branding look and feel, and no more than 40 percent third-party, commercial identification.” Transient merchant activity in the zone was to be approved by the City. Temporary advertising, signs and structures that didn’t meet certain requirements were banned. Indianapolis adopted similar rules when it hosted Super Bowl a year ago.

This January, the City of New Orleans told the business community that “because of additional approval requirements, based on the Clean Zone and other factors, we strongly encourage you to apply for permits well in advance of the posted deadlines” in a Bowl planning schedule.

Last week, Marjorie Esman, executive director of the ACLU of Louisiana, said “in the original language of the city’s NFL Clean Zone, you couldn’t put up a sign that didn’t have the Super Bowl or NFL brand on it, and you couldn’t raise a flag, including an American, Mardi Gras or LSU flag.”

Esman said “without specific knowledge of what the NFL required, the City of New Orleans may have gone beyond those requirements.” She said many restrictions in the zone, like vending without a license or selling counterfeit merchandise, were illegal anyway. Unlicensed vending is prohibited by city ordinances, and selling counterfeit merchandise is trademark infringement under the federal Lanham Act of 1946.

As for the zone’s joint administration, Ryan Berni, spokesman for Mayor Mitch Landrieu, said last week “the city’s Clean Zone ordinance was done in consultation with the Super Bowl Host Committee and the NFL. It was a requirement of the bid for the Super Bowl.”

The ACLU felt the City and the NFL went too far in their restrictions. Esman said “we challenged the language and got it struck down because it didn’t protect First Amendment rights.” On Jan. 24, the ACLU filed a suit on behalf of Bourbon St. preacher Troy Bohn, and Tara Jill Ciccarone, an Occupy NOLA member. Mayor Landrieu and Police Superintendent Ronal Serpas were defendants.

Soon afterwards, the City on Jan. 28 agreed to modify the Zone’s rules to fewer restraints on commercial speech. At the same time, New Orleans realtor Andrew Grafe, who had retained the ACLU of Louisiana because of his belief that Clean Zone rules violated his right to commercial free speech, released the City from his challenges.

Following the Jan. 28. settlement between the ACLU and the City, “businesses were allowed to hang signs advertising their merchandise,” Esman said.

In a statement, the City said “the settlement clarifies that the Clean Zone is not intended to affect non-commercial speech. Only minor changes will be made to the application and enforcement of the current Clean Zone ordinance for the Super Bowl, and the original boundaries will remain intact.”

For its part, the ACLU said the agreement with the City clarified the zone’s control of commercial activity. Protestors, preachers, Carnival revelers and those not engaged in business could carry signs, flags and non-commercial displays, provided they obeyed other applicable laws. Language prohibiting general advertising, which could have restricted marketing by local firms at places of businesses and points of sale, was eliminated. Following the settlement, advertisements and signs no longer needed NFL-approved content or a League look-and-feel. Permission to display advertisements and signs was no longer limited to NFL sponsors. Temporary signs, including advertisements, weren’t prohibited.

Advertising via billboards, building-wrap banners, video displays and A-Frame signs remained restricted in the Clean Zone, however.

Last week in the French Quarter, Susan Charles, a fabric artist with the Dutch Alley Artist’s Co-op, said she understood the Clean Zone’s rationale. “Visitors spent lots of money here during Super Bowl,” she said. “The City needed this area to look good and it did.” Charles, who produces Mardi Gras wall hangings, said knockoffs are a problem for business. “We don’t allow people to take photos of the art in our gallery,” she said. “It’s our livelihood and we don’t want it copied.” Twenty-five artists belong to the co-op on North Peters St.

Meanwhile, numbers are still being crunched on the Bowl’s economic impact on New Orleans. The event was expected to bring in $430 million, according to the Super Bowl Host Committee long before the game. Preparations for the event are estimated at over $1 billion. But road and Superdome repairs and streetcar track construction, along with post-Katrina publicity, should have long-term benefits. Indianapolis took a loss on last year’s Super Bowl but city officials there said the publicity was worth it.

As for targeted zoning, Berni said “we’ve had Clean Zones for a number of events—Super Bowls, Final Fours, Bowl Championship Series or BCS games, Essence Festivals and French Quarter Fests.” They’ve sometimes been called Event Zones, he said.

Ahead of the the Republican National Convention in Tampa last August, a planned Clean Zone was downsized and renamed an Event Zone after political activists and the ACLU complained.

The area bounded by the city’s Super Bowl Clean Zone was Earhart Boulevard to Calliope St.; Religious St. to Orange St., extending across the Mississippi River along the West Bank levee; and continuing across the Mississippi River on the East Bank to Elysian Fields Ave.; North Claiborne Ave. to Tulane Ave.; and North Broad to Earhart Boulevard.

This article was originally published in the February 11, 2013 print edition of The Louisiana Weekly newspaper

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