Posted on: Tuesday, July 22, 2003

Judge to rule on aerial banners

By David Waite
Advertiser Courts Writer

A federal judge yesterday said she hopes to rule within two or three weeks on a claim by a California-based anti-abortion group that the First Amendment gives it the right to use airplanes to tow banners above O'ahu that graphically depict the effects of abortion.

Robert Muise, an attorney for the Center for Bio-Ethical Reform, told visiting Judge Ann Aiken that the airspace above O'ahu's beaches and parks is a public forum, one in which his client wants to practice its constitutional right to free speech.

Muise said a city ordinance that bans all forms of airborne messages is unconstitutional. He said the anti-abortion group uses banners towed behind airplanes in six other states to make its point.

The towed banners are essentially the only way the anti-abortion group can deliver its message with the effect it desires because television stations and newspapers will not accept pictures of aborted fetuses, Muise said.

But city lawyer Greg Swartz said the 33-year-old ban on aerial advertising is constitutional because it is "content neutral," prohibiting any message from appearing in the skies above O'ahu, be it political or commercial in nature.

"Tourists and people on the street also have a right to be left alone," Swartz said.

He said the group has a "variety of avenues" to get its message out. It operates a billboard truck on O'ahu with images of aborted fetuses and is free to pass out handbills or place literature in news racks along city sidewalks.

But Muise told Aiken that there is no faster, more economical or safer way for the group to get its anti-abortion message across than to used the towed banners.

The depictions of aborted fetuses cause such a "visceral response, and often violent response in some people" that the billboard truck drivers are required to wear body armor," Muise said. "We have serious safety concerns with other forms of speech."

By towing a banner behind an aircraft, the anti-abortion group believes it can deliver a thought-provoking message to 60,000 people a day, Muise said.

Tourists who frequent Hawai'i and visit the beach tend to be "wealthy and culturally elite," the very group the anti-abortion group wants to see and consider its message, Muise said.

But Swartz argued that O'ahu's natural environment is a unique resource, one of vital importance to a state where tourism is the No. 1 industry.

"The courts have looked at where traditional free speech forums have assembled for the last 200 years and it has not been in the sky," Swartz said.

He said the nation's air space is heavily regulated and does not qualify as "a designated public forum."

Swartz said the test should be whether the city is "trying to interfere with a particular message." The answer is no, he said, because the city bans all aerial messages.

Attorney Guy Archer, who represented The Outdoor Circle at yesterday's hearing, told the judge that the "principal function of the airspace above O'ahu" is to safely convey aircraft, not to hold a public debate on an issue.

But Muise likened the efforts of the Center for Bio-Ethical Reform to the civil rights movement of the 1960s "and every other movement that tried to displace people from their complacency."