Pro-Life Group Cites First Amendment Rights

A 9th Circuit Federal Appeals Court panel is considering a case over a 2002 city ban on aerial banner advertising, after an anti-abortion group questioned the legitimacy of such a ban under the group's First Amendment rights. At issue is the right of the state to grant counties the authority to govern what is displayed within their airspace.

Robert Muise, attorney for the California-based Center for Bio-Ethical Reform, says the ban violates federal law and infringes on the group's First Amendment right of free expression. The group is asking to be allowed to fly aerial banners depicting aborted human fetuses above Honolulu beaches.

Current regulations give Hawaiian counties the authority to ban displays in airspace or waters beyond county boundaries if they are visible from any public place. A federal judge upheld the city's ban last November, and Governor Linda Lingle bolstered the bill further in July by signing the bill in question, giving counties the authority to ban displays in airspace, or waters beyond county boundaries, if they are visible from any public place.

Federal law allows such advertising, although up until 2002 the FAA also stated as a provision that planes flying lower than 1,000 feet AGL must "understand and obey local and state ordinances that may prohibit or restrict banner tow operations" -- a provision that was cited in the original ruling.

After the ruling was made, the FAA removed the provision -- as the agency "wanted to make it perfectly clear that the FAA still retained sole authority over airspace," according to an FAA spokesman.

According to Muise, the group has flown such banners above 19 states, and Honolulu is the only city that prohibits the activities. Muise maintains that the way the law is currently written -- with the original provision struck -- the federal government has final say over what can be displayed.

City officials have stated if the ban is overruled in the courts, they will seek federal legislation to keep the skies over Honolulu free of "offensive" images.

FMI: www.faa.gov