Battling the Air Banner Ban

Huntington Beach will soon become the first city in California to prohibit banner-towing planes after residents complained about the noise. But the rules are now at the center of a free-speech battle that pits the city against an anti-abortion group.

The ordinance takes effect Wednesday at a time when other coastal communities are considering similar bans on the planes, which pull ads for a variety of products, including soft drinks and dot-com companies.

The Center for Bio-Ethical Reform, which paid for towed banners with graphic pictures of 10-week-old aborted fetuses over beaches last summer, alleges in a lawsuit filed in federal court that the ordinance is unconstitutional.

“The moment this ordinance goes into effect, my client’s rights are being violated,” said Robert Muise, an attorney with the Thomas More Law Center, a public interest law firm in Ann Arbor, Mich.

The group is seeking a temporary restraining order that would halt the ban until a court decides whether the law violates 1st Amendment protections of free speech.

The lawsuit says the group’s banners are a form of political speech that deserve special protection.

City officials insist their rule is legal because it doesn’t target certain banners, but bans them all. They also point out that the ordinance was meant to reduce noise, not muffle the voice of advertisers.

“It’s not what’s on the banner, it’s the noise,” said Councilwoman Connie Boardman.

The city expected companies that tow the banners to challenge the ordinance, and the anti-abortion group’s lawsuit came as something of a surprise.

The organization is known for its high-profile tactics. In addition to banners, it has sent caravans of trucks with the same images along busy freeways in major metropolitan areas and around schools.

Legal experts said the group will have an uphill battle because it must show there are not sufficient alternative ways to express its views.

“The [Supreme] Court says as long as the restriction is content-neutral, the government may control the time, place and manner of speech,” said Eugene Volokh, a law professor at UCLA.

Gregg Cunningham, executive director of the Center for Bio-Ethical Reform, insists the banners represent one of the few ways the organization has to express its views, noting that newspapers and television stations have refused its ads because of their graphic content.

“We don’t have alternative ways of getting our message out that are remotely as effective as this,” Cunningham said.

He also challenged the assertion that the ban is content-neutral. He cited comments by one council member, Pam Julien Houchen, who cited the abortion banners as one reason she supported the ban.

“The ordinance is not content-neutral if the people enacting it explicitly state that their purpose is to get our aborted-baby pictures out of the skies,” Cunningham said.

For years, beach communities have been stymied in their efforts to curb the noise because airspace is controlled by the Federal Aviation Administration, which has steadfastly supported the right of banner planes to operate.

But a recent federal appeals court ruling upheld the right of Honolulu to ban aerial advertising, prompting Huntington Beach to enact its ban. Several other beach cities, including Laguna Beach and Hermosa Beach, are studying the issue.