Imagine yourself on one of Honolulu's famously pristine beaches. The sun is shining, the birds are chirping, and you haven't a care in the world. You place a towel down in the sand and then gaze up at the cloudless sky, when, suddenly, a small plane towing a 46-foot-by-100-foot banner crosses your field of vision. You silently wonder whether there is anywhere in the world you can be safe from the constant barrage of advertising. But as the plane gets closer, you see that it's no advertisement; instead, it's a giant photograph of an aborted fetus, and it's coupled with an anti-abortion message. Startling? Certainly. But is such speech protected by the First Amendment? That is a question that the Center for Bio-Ethical Reform and the Thomas More Law Center are asking the Supreme Court to resolve.
In truth, the scenario described above is currently purely hypothetical: Since 1970 a Honolulu ordinance has prohibited the "use [of] any type of aircraft or other self-propelled or buoyant airborne object to display in any manner or for any purpose whatsoever any sign or advertising device." The cert petition in Center for Bio-Ethical Reform v. City and County of Honolulu (No. 06-479), which the Supreme Court will consider at its private conference on December 1, asks the Court to allow the banners and invalidate the ordinance on either of two grounds: first, that Honolulu's local rule is federally pre-empted by Federal Aviation Administration regulations; and second, that the local rule is inherently unconstitutional because it unjustly prohibits legitimate political speech in violation of the First Amendment.
On the point of federal pre-emption, the Center for Bio-Ethical Reform (represented by Robert Muise of the Thomas More Law Center) claims that the decision it is appealing from the US Court of Appeals for the 9th Circuit directly conflicts with Banner Advertising Inc. v. City of Boulder, a decision of the Colorado Supreme Court holding that such municipal anti-towing ordinances are indeed "preempted by federal law, by operation of the Supremacy Clause of the US Constitution."
Honolulu's brief in opposition, authored by Gordon Nelson, the city's deputy corporation counsel, contends both that the facts were substantially different in the Colorado case and that the 9th Circuit had previously and consistently interpreted the FAA's federal regulations governing the display of aerial banners as definitively "not exclud[ing] local regulation of aerial advertising."
Even if Honolulu is correct that the FAA regulations do not preclude local regulation of aerial advertising, the Center for Bio-Ethical Reform's claim hinges on what it asserts is the noncommercial content of its message. The center is not trying to sell the beachgoers of Honolulu new tires or cans of soda, but rather it hopes to join the debate about the politically important issue of abortion. "Honolulu is not a ‘First Amendment-free zone' simply because it is a tourist attraction," nor is the First Amendment about the "right to catharsis" for the tourists who visit such beaches, the center's petition argues. The center goes further and states that its anti-abortion message is so powerfully and efficiently conveyed by flying giant banners across the skies of Honolulu that, to quote Marshall McLuhan, the medium is the message. The petition argues that there is no substitute for the unique "visual impact" that such banners convey, and if the ordinance is not overturned, the center will unjustly be prevented from such political speech.
Neither the 9th Circuit nor the city, however, view the air above a beach as a legitimate forum for political expression, regardless of the message that anybody wishes to express using banners. Indeed, although neither side disputes that such anti-abortion messages ought to be protected when expressed within public fora, the 9th Circuit found that "Honolulu's airspace is not naturally compatible with expressive activity," and therefore, reasonable and viewpoint-neutral regulations against such banners are permitted.
Moreover, the trial court found that regulating the airspace above Honolulu's beaches is an especially reasonable undertaking in light of the fact that maintaining the natural beauty of the island is "of paramount importance" to both the economy and the environment. In fact, the 9th Circuit encouraged the center to spread its message via any number of other public fora that abound, from television to email to "old-fashioned stumping." According to the court, all of these means of communication exist in order to allow people to conduct the serious and legitimate debate over abortion in this country; the airspace 2,000 feet above Waikiki Beach is simply not among the constitutionally protected locations for such an exchange.
The cert petition is careful to note that this issue of whether federal airspace ought to be designated a public forum for protected speech is one that the Supreme Court has never weighed in on. We may know soon whether the Court will attempt to do so.