Center for Bio-Ethical v. City and County of Hono.

• Decision Date: 23 May 2006
• Docket Number: No. 04-17496.,04-17496.
• Citation: 455 F.3d 910
• Parties: CENTER FOR BIO-ETHICAL REFORM, INC.; Gregg Cunningham, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU; Peter Carlisle, in his official capacity as the City and County of Honolulu Prosecuting Attorney; Boisse P. Correa, in his official capacity as Chief of Police, Honolulu Police Department, successor to Lee D. Donohue, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

455 F.3d 910

CENTER FOR BIO-ETHICAL REFORM, INC.; Gregg Cunningham, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU; Peter Carlisle, in his official capacity as the City and County of Honolulu Prosecuting Attorney; Boisse P. Correa, in his official capacity as Chief of Police, Honolulu Police Department, successor to Lee D. Donohue, Defendants-Appellees.

No. 04-17496.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 21, 2005.

Filed May 23, 2006.

Amended July 6, 2006.

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Robert J. Muise, Thomas More Law Center, Ann Arbor, MI, and Robert K. Matsumoto, Honolulu, HI, for the appellants.

Carrie K.S. Okinaga, Corporation Counsel, Gordon D. Nelson, Deputy Corporation Counsel, and Jon M. Van Dyke, Special Deputy Corporation Counsel, Honolulu, HI, for the appellees.

Appeal from the United States District Court for the District of Hawaii; David A. Ezra, District Judge, Presiding. D.C. No. CV-03-00154-DAE.

Before MYRON H. BRIGHT,^* M. MARGARET McKEOWN, and RICHARD R. CLIFTON, Circuit Judges.

ORDER AND AMENDED OPINION

McKEOWN, Circuit Judge.

ORDER

The Opinion filed on May 23, 2006, is amended as follows:

On slip Opinion page 5645, line 10 of footnote 1, insert the following text before the sentence that begins with "We note that Hawaii Revised Statute . . .": Neither did the district court abuse its discretion in denying the Center's request to amend its complaint. See Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir.2002) ("We review for abuse of discretion the denial of leave to amend after a responsive pleading has been filed.").

On slip Opinion page 5646, line 32, beginning with the sentence "In Skysign we explained . . ." and ending on page 5647, line 4, with "Id. at 1115.", delete and replace with the following text: In Skysign, we explained that "advertising is an area traditionally subject to regulation under the states' police power, and we therefore presume that federal law does not displace Honolulu's regulatory authority over advertising absent a clear statement of the federal intent to do so, either by Congress or by the FAA as Congress's delegate. . . . However, no such presumption applies to section 40-6.1, the aerial signage ordinance, which rather than addressing advertising generally specifically targets for regulation `an area where there has been a history of significant federal presence,' i.e., navigable airspace." Id. at 1115-16 (citations omitted).

On slip Opinion page 5649, at the end of footnote 3, insert the following text: Consideration of these documents and after-enacted changes is best left to the district court, not to the court of appeals for initial analysis. There is good reason why we generally do not consider issues for the first time on appeal—the record has not been developed, the district court has not had an opportunity to consider the issue, and the parties' arguments are not developed against the district court decision.

With these amendments, the panel has voted to deny the petition for panel rehearing. Judges McKeown and Clifton vote to deny the petition for rehearing en banc and Judge Bright so recommends. The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. See Fed. R.App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are denied.

OPINION

The City and County of Honolulu, Hawaii ("Honolulu"), has a long history of comprehensive regulatory oversight over its visual landscape, an effort designed to protect the area's unique and widely-renowned scenic resources. For example, in 1957, Honolulu was among the first municipalities to enact a comprehensive ordinance regulating signs, see State v. Diamond Motors, Inc., 50 Haw. 33, 429 P.2d 825, 826 (1967), and, in 1978, Honolulu first passed what later became Revised Ordinance of Honolulu § 40-6.1 (1996) ("the Ordinance"), which prohibits aerial advertising.

The question presented in this appeal is whether the Ordinance may be used to restrict an advocacy group from towing aerial banners over the beaches of Honolulu. To answer this question, we must first decide whether the Ordinance is preempted by federal law, and, if not, whether it passes constitutional scrutiny under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Less than five years ago, we answered the preemption question in the negative. Skysign Int'l, Inc. v. City and County of Honolulu, 276 F.3d 1109 (9th Cir.2002). Nothing presented in this appeal persuades us that we should depart from that precedent. As to the constitutional question, we hold that the Ordinance passes constitutional muster. The Ordinance is a reasonable and viewpoint neutral restriction on speech in a nonpublic forum, and the banner towing prohibited by the Ordinance is neither a historically important form of communication nor speech that has unique identifying attributes for which there is no practical substitute. We affirm the district court's grant of summary judgment in favor of Honolulu.

BACKGROUND

Honolulu's aerial advertising Ordinance is part of a longstanding scheme aimed at regulating outdoor advertising in order to protect the critical visual landscape that has made the area famous. The linkage between the scenic viewscapes and the economic well-being of Honolulu, including its tourist industry, is not disputed. As one witness aptly stated, "looking out to sea from Waikiki Beach without commercial or promotional interruption is as crucial to the Hawaii visitor's and resident's experience as is the uninterrupted viewing of the canyon for travelers to the Grand Canyon. . . . [F]ew things can damage the distinctive character of a scenic view faster than a large moving sign pulled through the center of the field of vision."

Given the importance of preserving the area's coastal and scenic visual beauty, and in an effort to prevent potentially dangerous aerial distractions for its coastal vehicle traffic, Honolulu enacted the Ordinance, which, with few exceptions, prohibits aerial advertising:

(a) Except as allowed under subsection (b), no person shall use 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. For the purpose of this section, a "sign or advertising device" includes, but is not limited to, a poster, banner, writing, picture, painting, light, model, display, emblem, notice, illustration, insignia, symbol or any other form of advertising sign or device.

(b) Exceptions.

(1) Subsection (a) shall not prohibit the display of an identifying mark, trade name, trade insignia, or trademark on the exterior of an aircraft or self-propelled or buoyant airborne object if the displayed item is under the ownership or registration of the aircraft's or airborne object's owner.

(2) Subsection (a) shall not prohibit the display of a sign or advertising device placed wholly and visible only within the interior of an aircraft or self-propelled or buoyant airborne object.

(3) Subsection (a) shall not apply to the display of a sign or advertising device when placed on or attached to any ground, building, or structure and subject to regulation under Chapter 21 or 41. Such a sign or advertising device shall be permitted, prohibited, or otherwise regulated as provided under the applicable chapter.

Section 40-6.1.

The Center for Bio-Ethical Reform and its director Gregg Cunningham (collectively "the Center") challenge the Ordinance because it prevents the Center from carrying out its aerial advocacy campaign over Honolulu's beaches. The Center is a prolife/anti-abortion advocacy group that hires airplanes to tow aerial banners over heavily populated areas. These banners are typically 100-feet-long and display graphic photographs of aborted fetuses. The Center has used this publicity technique in many states and has found it to be very effective in spreading its message.

Absent specific authorization, Federal Aviation Administration ("FAA") regulations prohibit operation of civilian aircraft over densely populated areas. 14 C.F.R. § 91.313(e). Consequently, prior to towing its banners, the Center obtained permission from the FAA in the form of a Certificate of Authorization ("Certificate"). The Certificate states that it authorizes "aerial advertisement banner towing," but contains a note stating that it "does not constitute a waiver of any State law or local ordinance." The Certificate grants authorization to tow banners in "the contiguous United States of America, Alaska, Hawaii, and Puerto Rico."

Upset that under the Ordinance it could not tow banners over Honolulu, the Center filed suit seeking declaratory and injunctive relief to prevent enforcement of the Ordinance. The Center alleged that the Ordinance violates its right to free speech under the First Amendment and its right to Equal Protection under the Fourteenth Amendment and that federal law preempts the Ordinance. The district court denied the Center's motion for preliminary injunction and we affirmed that ruling. Center for Bio-Ethical Reform, Inc. v. City and County of Honolulu, 84 Fed.Appx. 779 (9th Cir.2003).

The Center and Honolulu then filed cross-motions for summary judgment and the district court granted summary judgment in favor of Honolulu. Center for Bio-Ethical Reform, Inc. v. City and County of Honolulu, 345 F.Supp.2d 1123 (D.Haw.2004).¹ The district court rejected the preemption argument and held that the Ordinance did not violate the Center's constitutional rights.

ANALYSIS

I. THE ORDINANCE IS NOT PREEMPTED BY FEDERAL LAW

Within certain Constitutional limits and absent explicit language preempting state law, Congress may implicitly preempt state law through a comprehensive regulatory scheme that occupies the...