Waikiki aerial ban
challenged in federal court

An anti-abortion group tries
to overturn the city ordinance

An anti-abortion organization seeking to display the image of an aborted fetus on an airborne banner over Waikiki asked a federal judge yesterday to clear the way by declaring a city sign ban unconstitutional.

The ordinance prohibiting aerial advertising "suppresses too much speech," said Robert Muise, attorney for California-based Center for Bio-Ethical Reform. He asked U.S. District Judge Ann Aiken to issue an injunction against enforcement of the law.

Muise said the graphic image, which is already displayed on a truck that circulates in Honolulu, is political speech that aims to "change public opinion and public policy." The center displays aerial banners in six other states, he said.

"The Constitution protects speech that is off-putting," said Muise, a Michigan attorney. He compared the campaign with "the message of the civil rights movement and other movements which displaced people from their complacency."

Deputy corporation counsel Gregory Swartz argued that "Hawaii's only resource," the natural environment that attracts tourists, would be damaged. Billboards in the sky "would change the entire character of Hawaii," said Swartz.

"Our tourists would become a captive audience with no way to avoid the image," said Swartz, who argued that the group has other avenues, such as handbills and ground displays, to air its message. "Tourists and others at the beach have the right to be left alone."

The skies are not a forum "devoted to the purpose of assembly and debate," said Outdoor Circle attorney Guy Archer. The local environmental protection group intervened as a friend of the court.

The 9th U.S. Circuit Court of Appeals upheld the city aerial ban last October in a ruling on a suit brought by SkySign International, which briefly dragged commercial messages through island skies in 1996. It had received a Federal Aviation Administration waiver for the flights but was stopped when the city passed the aerial ban.

Much of the debate before Aiken yesterday concerned whether the ruling still holds. It cited FAA rules that required that FAA staff to advise the aircraft operator to be aware of local regulations. But a subsequent FAA internal document calls for deletion of the language referring to state and local laws.

Muise said the memorandum "changed the facts, so the conclusion has to be different." But, said Archer, it was a memo, not a change in the FAA rules.

Attorneys also addressed a city motion asking the judge to dismiss the suit. Swartz said the case is not "ripe" because the Center for Bio-Ethical Reform cannot show that it has been damaged by the ban.

Aiken said she will rule within three weeks on the motions for an injunction and for dismissal. The visiting judge sits on the federal bench in Oregon.

The California organization is targeting Honolulu skies because of the international visitors, said its executive director, Gregg Cunningham. "We can project a global influence."


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