Honolulu’s Aerial Advertising Ban is Constitutional

Center for Bio-Ethical Reform v. City and County of Honolulu, 2006 U.S. App. LEXIS 16837 (9th Cir. July 6, 2006).

Stephanie Showalter

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.

Preemption
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 Honolulu’s ordinance.

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 Center’s Certificate of Authorization “contemplates coexistence between federal and local regulatory schemes,” thereby eliminating the potential for conflict preemption.2 The Center’s 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 Center’s constitutional arguments.

Freedom of Speech
Banner towing is a form of speech protected by the First Amendment, but “the right to use public or government property for one’s 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 Honolulu’s 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 beaches.

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 Center’s preferred method of speech, the Center may still communicate its message through television, direct mail, email, leaflets, etc.

Conclusion
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 government interest.

Endnotes
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, 2006).
3. 16A Am. Jur. 2d Constitutional Law § 519.
4. Int’l Soc’y 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.