High court protects skies above Honolulu

THE ISSUE The U.S. Supreme Court has refused to consider a lawsuit challenging Honolulu's ban on aerial advertising.

THE failure of an anti-abortion group's attempt in court to be able to fly images of aborted fetuses above Honolulu is a major victory for clear skies. The U.S. Supreme Court's refusal to consider the case also should allow other counties to ban such displays in airspace and waters beyond county boundaries, but further challenges might follow.

Federal Judge David Ezra upheld the city's ban two years ago, and a three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed his decision in May. The high court's refusal to hear the case might not end challenges to ordinances that extend billboard bans into the skies.

Gregg Cunningham, director of the California-based Center for Bio-Ethical Reform, says the case "is a very long way from being over." He said the group plans to return to court and argue that the Federal Aviation Administration's permission for aerial billboards to be flown above Oahu should trump the city's disapproval.

The anti-abortion group argued in its failed case that the FAA had issued a notice in 2002 proposing to delete a provision in its handbook that planes flying lower than 1,000 feet must "understand and obey local and state ordinances that may prohibit or restrict banner tow operations." As the 9th Circuit panel pointed out, the notice "self-expired" a year later "without any change to the FAA handbook."

The panel stated that "Congress itself, or through the FAA," may regulate banner towing "in such a way that could preempt the (city) ordinance." It rejected the anti-abortion group's request that it consider changes made to the handbook in December 2004 and an FAA "revised certificate" dated Feb. 22, 2005, because they came after Ezra's ruling and so were not part of the case.

Federal legislation still might be needed to thwart a new legal challenge based on those recent documents and keep Hawaii's skies free of offensive images.