On behalf of Tara Ciccarone and Pastor Troy Bohn, the ACLU of Louisiana sought an order to block enforcement of the "Clean Zone" enacted as part of the preparations for Super Bowl XLVII.  The plaintiffs sought to engage in constitutionally protected speech that is barred by this ordinance, adopted by the City of New Orleans at the behest of the NFL.

The "Clean Zone" established an area of New Orleans, specifically the French Quarter, Faubourg Marigny, and the Central Business District, where between January 28th and February 3rd the following prohibitions would apply: 

Inflatables, cold air balloons, banners, pennants, flags, building wraps, A-frame signs, projected image signs, electronic variable message signs, and light emitting diode signs of any kind shall be prohibited except for those sanctioned or authorized by the City,

General and mobile advertising (including, but not limited to, signs on or attached to a vehicle, portable device or person) shall be prohibited except for promotional displays sanctioned or authorized by the City (consisting of at least 60% Super Bowl/NFL branding, look and feel, and no more than 40% third party commercial identification) and by the National Football League (NFL), including, but not limited to, those placed on existing public utility poles.

Anyone – business or individual – who wishes to display such signs, flags, banners or other items must apply for a permit, and only official NFL sponsors may apply. Additionally, any such sign, banner or flag must "consist of at least 60% Super Bowl/NFL branding, look and feel, and no more than 40% third party commercial identification."

In other words, within the "Clean Zone" nobody can fly a flag of any kind - Mardi Gras, American flag, Louisiana flag, LSU flag - and simple signs such as "Restrooms for Customers Only", "Buy your King Cake here," or "Roger Goodell will not be served here" are forbidden unless the speaker is an NFL sponsor; the NFL and the City approve the message; and the content is at least 60% NFL branding.

Tara Ciccarone, a member of the Occupy group, planned to display signs and billboards with political messages in the French Quarter and the CBD during the Super Bowl.  Among them were signs saying "Money is not more important than constitutional rights, despite what Clean Zone would indicate," and "Congress shall make no law ... abridging the freedom of speech..."  Pastor Bohn, of Raven Ministries, regularly preaches on Bourbon Street. He and his congregation wear t-shirts and carry signs that read "I Love Jesus," "Ask Me How Jesus Changed My Life," or similar messages, and carry a large cross emblazoned with the words "Raven Street Church."  All of these messages were prohibited by the "Clean Zone" ordinance.

Even the Super Bowl isn’t an excuse to suspend the First Amendment.The founders of our country didn’t intend our rights to be suspended for a football game. - Executive Director Marjorie R. Esman

While the ACLU’s immediate lawsuit concerned only noncommercial speech, the organization was concerned about the Clean Zone’s commercial implications as well. The "Clean Zone" forbade real estate "for sale" signs, and temporary advertisements on vehicles such as taxi cabs and food delivery cars.  Businesses have the right to promote themselves.  If local businesses were to benefit from the many visitors expected during the Super Bowl weekend, they must be able to inform customers of their offerings.  

A partial temporary restraining order was issued shortly after the suit was filed. The order reduced the effective area of the Clean Zone's noncommercial speech restrictions to the public areas immediately around the Superdome and New Orleans Arena. The order essentially freed up the right of individuals to carry signs, flags and other previously prohibited media throughout the French Quarter, Marigny and the rest of the CBD. The new, smaller boundaries of the noncommercial speech restrictions were as follows:

"The area bounded by Earhart Boulevard to Loyola Avenue; Loyola Avenue to Tulane Avenue; Tulane Avenue to North Broad; and North Broad to Earhart Boulevard; and including the Louisiana Superdome Property (Champion Square), and the New Orleans Arena."

The Court set a conference for Monday, January 28th to discuss the case with counsel. 

On January 28, 2013, the ACLU of Louisiana and the City of New Orleans reached an amicable agreement to modify the “Clean Zone” regulations adopted by the City in advance of the Super Bowl. In response to our lawsuit filed on behalf of a political protester and a preacher, the City agreed to substantially change policies that could have severely restricted constitutionally protected speech, from political and religious messages to advertisements promoting the City’s local businesses.

A summary of the changes:

(1)       The City clarified that the Clean Zone applies only to commercial activity. Protestors, religious preachers, Carnival revelers and other individuals not engaged in business can carry signs, flags and other noncommercial displays, provided they obey all other applicable laws.

(2)        Language prohibiting “general advertising,” which could have prohibited local businesses from advertising at their own places of businesses or points of sale, has been eliminated. Businesses may now advertise their products and services on site. However, off-site advertisements (advertisements for products sold elsewhere) and mobile advertisements may still be prohibited without the approval of either the City or the NFL.

(3)        Advertisements, signs and other media otherwise allowed under the Ordinance no longer need to contain NFL-approved content, or NFL look, branding and feel.

(4)        Permission to display advertisements, signs and other forms of media is no longer limited to NFL sponsors. Other businesses may advertise, as long as they comply with the rest of the Clean Zone regulations.

(5)        “Temporary signs” – including advertisements – are no longer prohibited. Businesses may advertise on site with temporary signs. Advertisements with other devices such as billboards, building-wrap banners, LED-displays and A-Frame signs are still restricted.

The temporary restraining order imposed by the Court was lifted once the Clean Zone regulations were changed to reflect both Constitutional requirements and the City’s original intent.

Attorney(s)

Justin P. Harrison, Alysson L. Mills

Date filed

January 24, 2013

Court

U.S. District Court for the Eastern District of Louisiana

Status

Victory!

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