Don’t rely on court to uphold aerial ban
A federal appeals panel is considering a challenge to Honolulu's ban on aerial advertising.
CITY officials appear confident that Honolulu's ban on aerial advertising will survive a legal challenge by an anti-abortion group
, but the outcome is anything but certain. Federal legislation might be needed to keep the skies free of offensive images.
Federal Judge David Ezra upheld the city's ban last November, and Governor Lingle provided antiaircraft artillery in July by signing a bill giving counties the authority to ban displays in airspace or waters beyond county boundaries if they are visible from any public place. The question before a three-judge panel of the 9th U.S. Circuit Court of Appeals is whether the state has the authority to allow counties to impose such a ban.
Jon Van Dyke, special deputy corporation counsel, says he is "pretty comfortable" that the city will prevail, citing a previous 9th Circuit ruling that upheld the city's ban on aerial advertising. However, at that time the Federal Aviation Administration's handbook said planes flying lower than 1,000 feet must "understand and obey local and state ordinances that may prohibit or restrict banner tow operations." The court took notice of that courtesy.
Following the 2002 ruling, the FAA struck that provision from its handbook. A spokesman said the agency "wanted to make it perfectly clear that the FAA still retained sole authority over airspace." Federal law allows aerial advertising.
Robert Muise, attorney for the California-based Center for Bio-Ethical Reform, argues that the ban violates federal law and infringes on the group's First Amendment right of free expression. If the group wins the lawsuit, that expression is expected to take the form of dragging 50-by-100-foot banners illustrated with aborted fetuses in the skies above the island.
Muise says his group has flown the banners above 19 states, and Honolulu is the only jurisdiction that prohibits the activity. Unless the FAA restores its deference to counties and states or Congress intercedes, Honolulu's ordinance is in jeopardy.
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