U.S. court upholds city ban on sky ads

An anti-abortion group intends to appeal the decision

A federal appeals court upheld Honolulu's ban on aerial advertising yesterday, rejecting an anti-abortion group's argument that its free-speech rights were violated when it was prohibited from flying banners of aborted fetuses over crowded Waikiki beaches.

The unanimous ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals said the city's ordinance does not violate the First Amendment and is a "reasonable and viewpoint neutral restriction on speech in a nonpublic forum." The group has other means of conveying its message, the judges said.

"Preservation of the visual beauty of Honolulu's coastal and scenic areas is of paramount importance," the court said.

The Center for Bio-Ethical Reform said it expected to lose in the liberal lower courts and will appeal the decision to the Supreme Court.

Gregg Cunningham, director of the Orange County, Calif.-based group, said the First Amendment has taken "a grievous blow."

"If the environmental groups and political leftists who are trying to suppress the truth about abortion think we're going to go away because we lost two cases that we fully expected to lose, they're in for a rude awakening," he said.

The decision affirmed an earlier ruling by the U.S. District Court and could open the way for other cities to join Honolulu in prohibiting banners towed by aircraft.

Hawaii has no billboards or other prominent outdoor advertising, and murals of whales and the ocean adorn the sides of buildings. The city banned aerial advertising in 1978.

Mayor Mufi Hannemann and environmentalists applauded the decision, saying it will help preserve Hawaii's natural beauty and tourist industry.

"This obviously has strong implications for our visitor industry to know that when people come here they're going to see things here that really make for an island paradise type of vacation," the mayor said. "This is great news for us."

Mary Steiner, chief executive of The Outdoor Circle, which has been a supporter of the city's case, said the court ruling was not a surprise.

"We have never doubted for a moment the importance of the scenic environment that it is just as important as any of the rest of the environmental issues that are out there," Steiner said. "We're not going to stand by and let it be destroyed in any way, shape or form," she said, standing alongside the mayor.

Cunningham said it is "perverted" to care more about the scenery than "children being tortured to death."

The court's opinion, written by Judge M. Margaret McKeown, said banner towing is "neither a common means of speaking nor a distinct and traditionally important form of expression."

Contrary to the court's opinion, the group does not have alternative methods to advertise because it has been "shut out" by mainstream media, which often publish graphic images from wars and natural disasters, Cunningham said.

The anti-abortion group sued the city in 2003, saying it had a right to fly over Waikiki's crowded beaches 100-foot-long banners displaying graphic images of aborted fetuses, as it has in other cities, to promote its anti-abortion message. It already uses trucks around Honolulu plastered with giant photos of bloodied fetuses.

The group wants to fly banners in Hawaii to reach an international audience, as it does in other tourist-populated areas like Florida.

"The people who are playing this game with the First Amendment in Hawaii are inviting a level of attention from us that they are going to come to regret," Cunningham said. "If we do lose this battle long term, I'm going to absolutely swamp the state of Hawaii with our trucks and you're not going to be able to cross the street without seeing one."

Constitutional expert Jon Van Dyke, who acted as special deputy corporation counsel for the city, said that the court's ruling showed that the aerial ban is constitutional.

"The court also recognized that the ban on aerial advertising is content-neutral," Van Dyke said. "This is an even-handed restriction. It affects every group, every point of view and for that reason it meets the constitutional requirements."

The Associated Press and Star-Bulletin reporter Crystal Kua contributed to this report