On the heels of U.S. District Judge Steven C. Seeger partially denying Nike’s motion to dismiss a lawsuit over a failed laser-light show for the 2020 NBA All-Star Game in Chicago, Seeger last Friday advanced a claim accusing Chicago of favoring the Chicago Bulls over Nike by allowing a skyscraper to be lit up in red—the Bulls’ color.
There’s another ingredient to the controversy: the day the skyscraper was lit up in red was Valentine’s Day.
Multiple lawsuits have emerged from a failed effort by National Experiential, a marketing and advertising company, to promote Nike’s brand in Chicago during the 2020 NBA All-Star game weekend.
As Seeger explained, the laser-light display would have featured “a jaw-dropping, gravity-defying feat by a Chicago Bulls legend . . . [and] it would [have shown] a video of Michael Jordan‘s unimaginable, unforgettable dunk during the 1988 slam-dunk contest, plus the Nike ‘Jumpman’ logo.” The projections were intended to be seen on One Prudential Plaza (formerly the Prudential Building) and the Aon Center, which are two skyscrapers bordering the north end of the city’s Millennium Park. There would have also been a Batman-style inspired “bat signal” laser event near the United Center.
Unfortunately for National Experiential and laser-light show enthusiasts, the show didn’t go on. The reason: confusion over whether National Experiential needed a permit from the city.
National Experiential signed a contract with the city that gave the company a license to project images from Millennium Park—but a license is not a permit, and the city maintained the contractual right to cancel the licensing contract “at any time, for any reason.” Based on emails with the real estate company that manages Millennium Park, National Experiential believed that it didn’t need a permit for the light show. That was a mistake.
Only two days before the big show, National Experiential learned from the same real estate company that, in fact, it needed a permit from the city. That was bad news, especially since the city’s ordinance regulating signage prohibits “temporary illuminated signs” and “dynamic image displays.” Although the ordinance also authorizes a zoning administrator to issue a temporary sign permit (with various restrictions), National Experiential had very little time by that point and was unable to secure permission.
National Experiential has sued, among others, Nike, the city, the real estate company and the Chicago Sports Commission (CSC)—an influential private entity that Seeger wrote has members including “Chicago’s most powerful business and sports leaders” such as “representatives from the Chicago Bulls.”
National Experiential, Seeger wrote, believes it “got a lesson in how things work in Chicago,” and accuses the CSC of working behind the scenes to ensure that a plan for lighting the Prudential Building in red “to promote the Bulls” was picked instead the Nike laser-light show. And while National Experiential was told it needed a permit for its show, CSC didn’t need a permit.
In last Friday’s ruling, Seeger dismissed constitutional claims against CSC and the real estate company because, among other reasons, they are private entities. But the judge—who, before joining the bench in 2019, was a senior trial counsel at the U.S. Securities and Exchange Commission and earlier a partner in the Chicago office of Kirkland & Ellis—refused to toss all of National Experiential’s claims against the city.
Of note is National Experiential accusing the city of using ordinances to “illegally discriminate against Plaintiff’s temporary sign projection … by requiring a permit.” As National Experiential sees it, the city engaged in viewpoint discrimination by allowing CSC to light up the Prudential Building in red, without a permit, after denying National Experiential of its planned display because of a lack of permit. By “viewpoint discrimination,” the First Amendment bars government entities from restricting expression on the basis of an expressed viewpoint.
“In National Experiential’s view,” Seeger wrote, “the City picked a winner and a loser, and did so based on the content of the speech. The City favored pro-Bulls speech and disfavored pro-Nike speech. The government cannot pick winners and losers when it comes to speech, based on the content of the message.”
Chicago disputes this allegation, including because—as the city sees it—lighting up a building in a color is not a “sign,” which requires a permit. Chicago also argues that red lighting, unlike the laser-light show planned by National Experiential, was not a “dynamic image display” within the meaning of the ordinance.
Seeger reasoned it’s “a question for discovery” as to “why the City did what it did” and whether the City can show it “did not choose one display over another based on the content.”
So National Experiential’s complaint “says enough to live to fight another day.”
