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.
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