Posted on: Wednesday, November 10, 2004

Honolulu ban on sky ads upheld against lawsuit

Advertiser Staff

A California-based group seeking to outlaw abortions yesterday lost its court case in a bid to use airplanes to tow banners in O'ahu skies that show graphic photographs of aborted fetuses.

U.S. District Judge David Ezra yesterday threw out the lawsuit filed by the Center for Bio-Ethical Reform, which sued the city over ordinances prohibiting aircraft from displaying advertising.

Ezra said the island's airspace is not a traditional public forum and has not been designated a public forum by the government.

"As airspace is a nonpublic form, restrictions on speech within its confines need only be reasonable and viewpoint neutral," the judge wrote. "Honolulu's ordinance meets this low standard, and therefore complies with the mandate of the First Amendment."

Ezra also said the ordinance does not discriminate on the basis of the advertising's viewpoint.

During arguments held in the case last year, Robert Muise, lawyer for the center, argued that the airspace above O'ahu's parks and beaches is a public forum where his client should be allowed to exercise its constitutional right to free speech.

But city deputy corporation counsel Greg Swartz said the 33-year-old ban on aerial advertising is valid because it does not rely on the content of the message. He also said airspace is heavily regulated and does not qualify as a public forum.