Bob Benyo, owner of the company cited for towing advertising banners behind a plane over Honolulu in violation of a 36-year old city law, is no neophyte blindsided by a local ordinance. So why has he provoked a legal and political confrontation over Honolulu’s ban on aerial ads?
Benyo is the owner of Aerial Banners Inc., a company based in Pembroke Pines, Florida, and a sister company, Aerial Banners North, incorporated in New Jersey but also based in Florida. Benyo also owns three other aviation-related companies, Triton Airways LLC, Bobby’s Landing LLC, and Aerial Banners Mods LLC. All the companies are registered to do business at the same Pembroke Pines’ address, Florida corporation records show.
Aerial Banners and Aerial Banners North have 38 small planes registered to them, including the Piper PA-25-235 Pawnee manufactured in 1965 that is now flying in Hawaii, according to Federal Aviation Administration records. The company has said it operates its aircraft in 27 markets on the U.S. mainland.
It appears Honolulu’s ban on aerial advertising has been causing problems for Benyo’s companies since at least as early as mid-2010. That’s when one of his planes drew complaints from officials in Hilton Head, South Carolina, after it buzzed area beaches in violation of a local ban.
Benyo told reporters at the time that he had never run into a local prohibition of this kind.
“This city is insane,” he told the Island Packet, a local newspaper. “They don’t want roadside billboards, but come on — this is America; last time I checked, they were part of it.”
The newspaper, though, pointed to the precedent set by Honolulu’s 1978 ban on aerial ads, which has twice been upheld as legal by the 9th U.S. Circuit Court of Appeals. The most recent 9th Circuit decision in 2006 was appealed by advertising proponents, but the U.S. Supreme Court declined to hear the case, leaving Honolulu’s law intact.
Since that time, other cities have been seriously looking at adopting their own bans. Those considering bans last year included San Francisco, and Austin, Texas. These proposals reportedly prompted intense industry lobbying against any new bans. The push back has highlighted confusion over the question of whether local bans are legal despite overall control of civil aviation by the FAA, and in the process have again underscored the threat to the aerial advertising industry posed by Honolulu’s legal victories.
I personally suspect that the “we-don’t-care-what-your-laws-say” entry of Aerial Banners into the local scene is specifically designed to set up another legal challenge to the Honolulu law, hoping to take advantage of the increasingly conservative and pro-business Supreme Court which has leaned in a pro-business direction.
Local attorney and blogger, Robert Thomas (InverseCondemnation.com), has commented that the prior court cases have “pretty definitively” determined that Honolulu’s ban on airborne advertising is neither preempted by federal law, nor a violation of Free Speech rights. I certainly hope he’s right.
It’s helpful to take a closer look at the most recent, and most definitive 9th Circuit Court decision, issued in 2006. It came in a case brought by an anti-abortion advocacy group, which wanted to have planes tow its large banners featuring graphic images of aborted fetuses. When it confronted Honolulu’s ban on such advertising, the group went to court. It alleged, first, that the city has no authority to prohibit aerial advertising because the FAA has sole jurisdiction regarding aviation. In addition, the group argued that the ban violated its constitutional rights to free speech and equal protection.
“The airspace does not fit the public forum category because it is not among those places that … have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” — 9th Circuit Court
The court proceeded to carefully dismantle these claims, relying to a large extent on an earlier 9th Circuit decision just a few years before. First, the court noted that while Congess or the FAA have the power to place sole authority in this area in the FAA’s hands, they have not done so. Instead, the court noted several types of evidence that the law “contemplates coexistence between federal and local regulatory schemes.”
The court cited language contained in FAA waivers needed to operate aircraft over populated areas that refers to the need to comply with local regulations, an FAA handbook containing similar instructions, as well as a legal brief filed by the FAA in the earlier case, in which the federal agency supported Honolulu’s authority to adopt its own ban.
This week, the FAA reaffirmed that position in a written statement issued in response to a query from U.S. Sen. Brian Schatz.
As to the First Amendment, the court began by stating: “It is uncontested that the banner towing at issue is a form of speech protected under the First Amendment.”
In areas that have traditionally functioned as a public forum, such as public sidewalks, parks, and similar public spaces, restrictions on free speech are subjected to the most rigorous constitutional scrutiny and will only be upheld if they “serve a compelling state interest that is narrowly tailored to the desired end.”
But the court found “the airspace does not fit the public forum category because it is not among those places that ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’”
In such places, restrictions on speech must only be “reasonable,” and neutral as to content. The court found no evidence to suggest that the ban on aerial ads was tilted to favor any ideology or political faction, and declared the ban to be content neutral. Honolulu’s law treats all aerial advertising the same, whether commercial, noncommercial or political.
“In short,” the court found, “the prohibition is entirely neutral.”
And it was reasonable, the court found, because it furthers several legitimate governmental needs, “including preserving the economically vital scenic beauty of Honolulu and minimizing traffic safety hazards for motorists and pedestrians.”
Finally, the court concluded, prohibiting advertising by towing a large banner behind an airplane leaves plenty of traditional ways to get a message out, “from television to direct mail, email, leaflets, hand-held signs and old-fashioned stumping, Hyde Park style.”
There doesn’t seem to be much, if anything, that has changed in the eight years since that decision was issued. And the decision didn’t require any legal sleight of hand that might be subject to an obvious challenge.
On the other hand, Aerial Banners went to a lot of trouble and expense to dismantle its plane, pack it in a shipping container, and transport it to Hawaii, then reassemble it while making the logistical arrangements to operate from a state airport. If it’s just free publicity they’re after, so far it’s been incredibly bad publicity, accompanied by hostile commentary.
“I am not looking for a fight,” Benyo told Civil Beat columnist Denby Fawcett.
Despite these somewhat conciliatory words, he did indeed pick this fight with all of us. Benyo and his companies have launched a broad, blunt, and very deliberate challenge to Honolulu’s longstanding law against aerial advertising and visual clutter. That’s clear. The “why” of it all, though, remains elusive.