The U.S. 9th Circuit Court of Appeals on Tuesday ruled that Honolulu's ban on aerial advertising is constitutional and rejected the arguments of a pro-life/anti-abortion group that contended that the ban restricts free speech.
In a unanimous ruling, the court ruled that the city's ban on aerial advertising is not preempted by federal law and violates neither the free speech provisions of the First Amendment nor the equal protection clause of the Fourteenth Amendment.  Writing for the court, Judge Margaret McKeown wrote that "Honolulu’s airspace is a nonpublic forum, and the Ordinance is reasonable, viewpoint neutral, and rationally related to legitimate governmental interests." ("Nonpublic forum" is defined as a place that is not traditionally or explicitly opened to free expression.)
The Center for Bioethical Reform (CBR) challenged Honolulu's ban, claiming that the ban infringes on their right to public advocacy.  The group planned to fly a plane towing a 100-foot banner showing graphic images of aborted fetuses, and contended that authorization they sought and received from the Federal Aviation Administration authorized the group to fly in all fifty states and Puerto Rico.
The CBR has driven vans with such images around Honolulu in the past few years.
Judge David Ezra, U.S. District Judge for Hawaii, ruled in November 2004 that the ordinance was constitutional.  The appeal was argued before the 9th Circuit in Honolulu in November 2005.
Announcing their intent to appeal to the U.S. Supreme Court, Gregg Cunningham, executive director of the CBR, said, "We never expected to get justice in the U.S. District Courts or in Honolulu. Our goal has always been to get to the U.S. Supreme Court. It's the only place we feel we'll get a fair hearing.
"If the environmental groups and political leftists who are trying to suppress the truth about abortion think we're going to go away because we lost two cases that we fully expected to lose, they're in for a rude awakening," Cunningham said.
Hawaii has had a statewide prohibition on billboards and similar forms of advertising since 1927, and is unique among U.S. states in this regard. In addition, since 1957, Honolulu has had a comprehensive law regulating the size and content of signs.  Honolulu's ban on all aerial advertising was enacted in 1978.  
Honolulu Mayor Mufi Hannemann praised the decision, saying, "This obviously has strong implications for our visitor industry to know that when people come here they're going to see things here that really make for an island paradise type of vacation. This is great news for us."
Mary Steiner, head of the Outdoor Circle, an environmental group that supports the ban, said, "We have never doubted for a moment the importance of the scenic environment that it is just as important as any of the rest of the environmental issues that are out there. We're not going to stand by and let it be destroyed in any way, shape or form."
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U.S. appeals court upholds Honolulu aerial ad ban