Aerial Advertising Ban is Constitutional
for Bio-Ethical Reform v. City and County of Honolulu, 2006 U.S.
App. LEXIS 16837 (9th Cir. July 6, 2006).
To protect its visual
landscape, Honolulu passed an ordinance in 1978 prohibiting aerial advertising.
The ordinance prohibits the use of any type of aircraft or other
self-propelled or buoyant airborne object to display in any manner or
for any purpose whatsoever any sign or advertising device.1
The Center for Bio-Ethical Reform (Center), a pro-life advocacy group
which hires airplanes to tow aerial banners displaying graphic photographs
of aborted fetuses, challenged the constitutionality of the ordinance
after it was prevented from towing banners over the beaches of Honolulu.
The Ninth Circuit Court of Appeals recently upheld the ordinance.
As an initial matter, the Center argued that the Honolulu Ordinance
was preempted by federal law. Because FAA regulations prohibit operation
of civilian aircraft over densely populated areas, the Center, in order
to conduct its aerial advocacy campaign, had to obtain a waiver in the
form of a Certificate of Authorization. The FAA issued the Center a
certificate granting authorization to tow banners in the contiguous
United States of America, Alaska, Hawaii, and Puerto Rico. The
Center contended that this certificate should trump Honolulus
State law may be preempted by federal law either when Congress enacts
a comprehensive regulatory scheme that occupies the entire field being
regulated (field preemption) or when compliance with federal and state
regulations is not possible (conflict preemption). The Center claimed
that Congress, via the Federal Aviation Administration (FAA), occupies
the entire field of tow banner regulation. The Ninth Circuit explained
that advertising is traditionally subject to regulation under the states
police power and neither Congress nor the FAA has exerted its authority
over the airspace to such a degree to warrant a finding of preemption.
Furthermore, the Centers Certificate of Authorization contemplates
coexistence between federal and local regulatory schemes, thereby
eliminating the potential for conflict preemption.2
The Centers certificate contains explicated language stating that
it does not constitute a waiver of any State law or local ordinance.
The Ninth Circuit concluded that the Honolulu Ordinance is not preempted
by federal law and moved on to the Centers constitutional arguments.
Banner towing is a form of speech protected by the First Amendment,
but the right to use public or government property for ones
private speech or expression depends on whether the property has by
law or tradition been given the status of a public forum.3
Regulation of speech in public forums is subjected to strict scrutiny
analysis, i.e. the restrictions must be narrowly tailored to a compelling
state interest. Restrictions on speech in nonpublic forums need only
be reasonable and viewpoint neutral.
The Ninth Circuit concluded that the airspace above Honolulus
beaches is a nonpublic forum. Public forums are places traditionally
devoted to expressive activity, such a public parks, streets, and sidewalks.
The airspace, in contrast, is not a place which has immemorially
been held in trust for the use of the public and, time out of mind,
[ ] been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.4 In
fact, as the court states, one would be hard pressed to find another
forum that has had its access as historically restricted as U.S. airspace.5
The airspace is, therefore, a nonpublic forum.
As mentioned above, a reasonable and viewpoint neutral restriction of
speech in a nonpublic forum does not run afoul of the First Amendment.
The Court found that the Honolulu ordinance was reasonable as it fulfills
several legitimate needs, including preserving the economically vital
scenic beauty of Honolulu and minimizing traffic safety hazards for
motorists and pedestrians.6 The court also concluded that the
ordinance was viewpoint neutral. The ordinance bans all aerial advertising
and displays regardless of content or purpose. The one exception, which
permits an identifying mark, trade name, trade insignia, or trademark
on the exterior of the aircraft, acknowledges that Honolulu cannot
prohibit airlines from displaying their names and logos. The court found
that there was nothing in the ordinance which would prohibit the Center
from purchasing an aircraft or blimp, emblazing it with an identifying
mark such as Abortion Kills, and flying it over the Honolulu
The Center also argued that the ordinance violates the First Amendment
because it forecloses an entire medium of communication, banner towing.
The court disagreed. Banner towing is not a common means of speaking
or a traditionally important form of expression deserving of special
protection. Furthermore, although banner towing may be the Centers
preferred method of speech, the Center may still communicate its message
through television, direct mail, email, leaflets, etc.
The Ninth Circuit determined that the Honolulu Ordinance restricting
aerial advertising was not preempted by federal law. The court also
held that the ordinance does not violate the First Amendment as it is
reasonable, viewpoint neutral, and rationally related to legitimate
1. Honolulu, Haw., Rev. Ordinances § 40-6.1 (1996).
2. Center for Bio-Ethical Reform v. City and County
of Honolulu, 2006 U.S. App. LEXIS 16837 at *10 (9th Cir. July 6,
3. 16A Am. Jur. 2d Constitutional Law §
4. Intl Socy for Krishna Consciousness,
Inc. v. Lee, 505 U.S. 672, 679 (1992).
5. Center for Bio-Ethical Reform, 2006 U.S. App. LEXIS
16837 at *16.
6. Id. at * 23-24.