City ban on aerial banners challenged
HUGE AERIAL BANNERS depicting graphic images of aborted fetuses are political speech that deserve First Amendment protection, the attorney for an anti-abortion group contends.
Robert Muise, counsel for the California-based Center for Bio-Ethical Reform, is asking a panel of three judges representing the 9th Circuit Court of Appeals to overturn a lower court's ruling that upheld Honolulu's ban on aerial advertising. The organization says the ban effectively squelches their ability to participate in public debate and influence public opinion.
"To censor the visual impact the images have on viewers is in effect to silence our clients' message," Muise argued yesterday to the three-judge panel, which is wrapping up oral arguments in Honolulu this week.
It is unknown when the panel -- consisting of Chief Judge Margaret McKeown, Justice Myron Bright from the 8th Circuit and Honolulu's Richard Clifton -- is expected to rule. The panel must decide whether Honolulu's ordinance is constitutional and whether federal law pre-empts it.
The center and its executive director, Gregg Cunningham, sued the city in U.S. District Court in April 2003, alleging that the ordinance violates its constitutional rights.
Last November, Chief U.S. District Judge David Ezra agreed with the city that it had the right to limit aerial advertising. Ezra held that the ban served legitimate needs, including minimizing distractions for passers-by and to "protect what is probably the state's most valuable and fragile economic asset -- the natural beauty upon which Hawaii's tourism economy relies."
The city maintains that the group has the constitutional right to express its views but is bound by regulations that govern when, where and how, said Jon Van Dyke, special deputy corporation counsel.
"This organization wants to pull a tow banner that would have a message on it and that would constitute advertising, which is prohibited by the ordinance," Van Dyke said.
The city's ordinance prohibits aerial advertising but has exemptions for self-identification, trademark and trade insignias because the FAA has authority over that, he said. For example, Aloha Airlines is allowed to have its name on its aircraft, and Goodyear on its blimp.
The center contends that the FAA has exclusive province over airspace and that any state or local law that conflicts with it is federally pre-empted.
The center has flown the banners -- some as big as 50 feet high by 100 feet long -- from aircraft in 19 states and has authorization from the FAA to fly in every state, Muise said. Honolulu is the only county that prohibits it from doing so, he said.
Van Dyke said the city prevailed in a nearly identical case in 2002 when the 9th Circuit upheld a Honolulu federal judge's ruling denying a challenge to the city's ordinance by SkySign International.
"So we feel pretty comfortable the SkySign opinion resolves that issue in the county's favor," he said. SkySign, which used a helicopter at night to tow an electric sign 8 feet high by 36 feet long, also sued the city after the City Council banned its flights.
Mary Steiner, chief executive of the Outdoor Circle, said Honolulu has been free of billboards of any kind since 1926, and the nonprofit organization considers aerial advertisements to be billboards.