Aerial banners request rejected

By David Waite
Advertiser Courts Writer

An anti-abortion group won't be able to use airplanes to tow 100-foot-long banners with pictures of aborted fetuses through the skies over O'ahu any time soon.

A federal judge yesterday rejected a request from the Center for Bioethical Reform for a court order that would have prevented the city from enforcing an ordinance that bans aerial advertising.

Visiting U.S. District Judge Ann Aiken denied a request by the California-based center for a temporary injunction that would have kept the city from enforcing the ban while the group's lawsuit against the city is pending in federal court.

Aiken did not dismiss the lawsuit altogether, as city lawyers had hoped. The judge ruled that the Center for Bioethical Reform does have standing in the matter, and that the center's lawsuit against the city is "ripe" to be heard even though the group has not attempted to fly the banners in defiance of the city ordinance.

The center filed the lawsuit against the city in April, claiming the ordinance that prohibits aerial banners infringes on its constitutional right to free speech.

Aiken's ruling yesterday does not bring an end to the lawsuit. But several of the reasons Aiken gave in rejecting the center's request to keep the city from enforcing the ban at least temporarily seem directed at the heart of the group's argument that the ban is unconstitutional.

Aiken said the abortion opponents have other ways to get their message out, and that the ordinance bans all aerial messages, not just those against abortion.

"I am also unpersuaded that plaintiffs are constitutionally entitled to use a medium which insulates them from their audience," Aiken wrote. "While it may be desirable from the standpoint of the speaker to engage in controversial expression without personal risk, this is not a goal enshrined in the First Amendment.

"The First Amendment protects dialogue, debate, argument — the free exchange of ideas, and particularly when that exchange may become heated," Aiken wrote.

Attorneys for the abortion opponents said at a July 23 federal court hearing before Aiken that drivers who operate "billboard" trucks with pictures of aborted fetuses on them are constantly threatened by others who are revulsed by the photographs and wear body armor as a result.

Attorneys for the Center for Bioethical Reform could not be reached immediately for comment.

The Outdoor Circle, which has been instrumental in keeping billboard and aerial advertising out of Hawai'i, praised Aiken's decision.

Lester Inouye, Outdoor Circle president, said he was not surprised by the ruling, since "O'ahu's scenic beauty is of paramount importance to residents and visitors alike."