Supreme court refuses aerial-ad case

The high court's action means an anti-abortion group cannot fly its banners over Honolulu

The U.S. Supreme Court yesterday refused to consider the case of an anti-abortion group seeking to fly planes over Honolulu towing aerial banners with images of aborted fetuses.

With the court not taking the case, Honolulu will be able to continue to ban aerial tow-banner operations.

The 9th U.S. Circuit Court of Appeals upheld a federal judge's ruling that 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 appeals court said.

The Center for Bio-Ethical Reform has flown its advocacy ads over many other states, and argued it should be able to do the same over Oahu.

Officials from the anti-abortion group said it was disappointed but will not give up its quest to fly planes over the island.

"We're not going away," said Gregg Cunningham, director of the Orange County, Calif.-based group. "This case is a very long way from being over."

Cunningham said he plans to take the matter back to the trial courts to argue another aspect of the case, that the Federal Aviation Administration permitted his company to fly over Hawaii after the facts of the case were presented. "That claim is much more likely to get the FAA involved," he said.

Mary Steiner, head of the Outdoor Circle, which has supported the city in the dispute, applauded the Supreme Court's decision not to hear the case.

"This is important for other jurisdictions that have been bothered by these banner-towing planes," she said. "We have our right to maintain the beauty of Hawaii and the right to say no to this visual blight."

Supporters said this could open the way for other cities to join Honolulu in prohibiting banners towed by aircraft and would preserve Hawaii's natural beauty and tourist industry.

Hawaii has no billboards or other prominent outdoor advertising. The city banned aerial advertising in 1978.

Cunningham said Bio-Ethical Reform does not have alternative methods to advertise because it has been "shut out" by mainstream media.

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 case is Center for Bio-Ethical Reform v. Honolulu, 06-479.