Hawaii Under Attack From The Air!
by Robert Thomas, Inverse Condemnation, July 8, 2014
No, it's not Pearl Harbor. But from some of the reaction we're seeing, you might think the Imperial Japanese Navy was once again off of our fair shores.
But thankfully no, it's only aerial advertising, a small airplane towing a sign. But the airplane's sorties have been generating attention like you wouldn't believe.
Hawaii has always been protective of its scenery, with an out-and-out prohibition on billboards, and two federal courts concluding pretty definitively (in our view) that the City and County of Honolulu's prohibition on airborne signs and advertising is not preempted by federal law, and does not violate Free Speech rights. See this Ninth Circuit decision (cert denied, by the way), and this earlier case, also from the Ninth.
Not so fast, says one company, which seems intent on pushing back. According to this story ("State and Local Officials Up Ante Against Sky Banner Ad Company"), an outfit called Aerial Banners North "has been toting banners through the sky along the windward and North Shore coasts of Oahu in violation of city law." Honolulu's Mayor "has vowed to prosecute the company," and another story breathlessly reports "Attorney for Aerial Banners North arrives in Honolulu" (the headline leaves us with the image of the lawyer wading ashore, like MacArthur).
So we're following this story with keen interest, because we like Municipal Law and that kind of stuff. Plus, the coverage of the issue sometimes puts a smile on our face. See, for example, the report that "The Outdoor Circle issues cease-and-desist letter over aerial advertising"). We're not sure how the Outdoor Circle, an environmental non-profit, can "issue a cease-and-desist letter," that promises if Aerial Banners doesn't ground itself, "then appropriate legal action will be taken against the company," but hey, what do we know.