Metropolitan News-Enterprise


Wednesday, May 24, 2006


Page 3


Ninth Circuit Upholds Ban on Anti-Abortion Banners Over Hawaii Beaches


By a MetNews Staff Writer


The airspace is a nonpublic forum and Honolulu’s ordinance banning aerial advertising does not violate the free speech rights of an anti-abortion group desiring to fly political banners over Honolulu’s the city’s beaches, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court affirmed U.S. District Judge David A. Ezra’s grant of Honolulu’s motion for summary judgment, rejecting a suit by The Center for Bio-Ethical Reform.

The center spreads its message by towing graphic aerial banners depicting aborted fetuses over heavily populated areas.  Seeking to fly its banners over the beaches of Honolulu, it obtained a certificate of permission to fly its banners from the Federal Aviation Administration but was prevented in its efforts by Honolulu’s 1978 ordinance prohibiting aerial advertising. 

The center filed suit in 2003 for declaratory and injunctive relief to prevent the enforcement of the ordinance, alleging that the ban violated its right to free speech under the First Amendment and its right to equal protection under the Fourteenth Amendment. It was represented by the Ann Arbor, Mich.-based Thomas More Law Center.

The center also alleged that the city’s ordinance was preempted by the Federal Aviation Administration regulations under which thecenter received permission to fly its banners.

Writing for the Ninth Circuit, Judge M. Margaret McKeown rejected the center’s preemption claim on the grounds that the Congress and the FAA have not exerted authority to occupy the field of aerial advertising, and the FAA certificate noted that it did not constitute a waiver of any state or local ordinance.

Rejecting the free speech and equal protection claim, McKeown concluded that the airspace is a nonpublic forum.  said the airspace did not constitute a public form under Ninth Circuit precedent and did not discriminate in favor of one viewpoint over another. 

“As to its history and purpose,” McKeown explained, “the airspace does not fit the public forum category because it is not among those places that ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ” 

As a nonpublic forum, the airspace could be restricted with regard to speech activities as long as the restriction was viewpoint neutral and reasonable in light of the purpose served by the forum, the judge said.

The ordinance was clearly viewpoint neutral, McKeown wrote.  She also agreed with the district judge n said that the ordinance was reasonable because it served the government’s legitimate need of protectingto protect the scenic landscape of Honolulu for economic purposes.

She quoted a witness who testified in the district court proceedings:

“[L]ooking out to sea from Waikiki Beach without commercial or promotional interruption is as crucial to the Hawaii visitor’s and resident’s experience as is the uninterrupted viewing of the canyon for travelers to the Grand Canyon. . . . [F]ew things can damage the distinctive character of a scenic view faster than a large moving sign pulled through the center of the field of vision.”

McKeown noted that banner towing is neither a common means of speech nor a distinct and traditionally important form of expression, and tsaid there are other equally effective means of expression.

“”The Center has at its disposal a wide range of practical and effective means of communicating its message—from television to direct mail, email, leaflets, handheld signs and old-fashion stumping, Hyde Park style,.” she wrote.

The center, she added, provided no support for its claim that it had been discriminated on the basis of its viewpoint.

The opinion was joined by Senior Judge Myron Bright of the Eighth Circuit, sitting by designation, and by Ninth Circuit Judge Richard Clifton, a Honolulu resident.

The case is Center for Bio-Ethical Reform v. Honolulu, 04-17496.


Copyright 2006, Metropolitan News Company