By: Kelton McLeod
The city of Seattle, Washington has been chosen to host the 2023 MLB All-Star Week and to act as one of the host cities for the 2026 FIFA World Cup. While these are fantastic sporting events that will bring many tourists and spectators to the Emerald City, the local government will need to consider the potential ramifications of the “clean zone” policies frequently required of host cities.
Clean zones are a requirement that certain areas within city limits be free of marketing signs, activations, or other promotional materials. FIFA, the Olympic Committee, and the MLB all implement clean zone requirements for major events with massive, sponsored advertising. Clean zones ensure that no advertising (or branding) is visible within the venue or around the event unless associated with an official sponsor. Clean zones are set to protect any deals already in place, as sponsors will pay massive amounts in order to be “The Official” product of an event like the Olympics and therefore want to ensure that the “honor” they pay for is not shared. However, these clean zone policies raise concerns about potential infringement on the free speech and commercial rights of the businesses who are outside the scope of these deals.
The First Amendment states that the government “shall make no law . . . abridging the freedom of speech.” In Virginia State Board of Pharmacy, this protection was extended to “commercial speech,” such as advertising. But, the Supreme Court tempered this extension, by stating that commercial speech is still subject to government regulation and is not as expansive as other free speech protections. Since Central Hudson Gas and Electric Corp. v. Public Service Commission, courts have applied a four-part test in resolving First Amendment challenges to commercial speech regulations. This test asks whether (1) the speech being restricted concerns lawful activity and is not misleading, (2) the asserted governmental interest is substantial, (3) the regulation directly advances that governmental interest, and (4) the regulation is not more extensive than necessary to serve that interest. There are no first amendment concerns if the type of speech being restricted is unlawful or misleading, but legal and non-misleading speech must consider other factors of the test.
In the case of clean zones surrounding major sporting events, the speech being restricted is lawful marketing or other promotional materials, meaning an analysis of the other factors is required. The governmental interest in these cases are substantial because clean zones are often a requirement to bring any event, and all its related revenues, to a host city. Further, clean zones may be implemented to protect public safety, prevent ambush marketing, and promote the integrity of the event. These are arguably substantial governmental interests that are advanced by clean zone regulation and therefore may justify the restriction of commercial speech within certain areas. However, the city still cannot be overly broad in its restrictions.
Seattle will need to consider the rights of businesses to engage in commercial speech. If local businesses in the designated clean zones are not able to engage in any commercial speech during the event, they could suffer from significant financial losses. To protect these commercial rights, the city will need to ensure that the clean zone regulation put in place is not too extensive, either in scope or proximity, to any stadium in use. The right scope of such regulations is highly fact dependent on the terms of individual clean zones, but if the regulations remain no more extensive than necessary, the clean zones should remain constitutionally sound.
As Seattle welcome’s visitors during the All-Star Week and World Cup matches, it will need to ensure that any policies are not overly broad nor cover more of any area than is necessary to serve the intended purpose of protecting the interests of the event organizers.