South-Western Legal Studies in Business

Federal Authority over Airspace Does Not Preclude State Regulation of Aerial Ads

Appeals court held that just because Congress, through the Federal Aviation Administration, controls use of the airspace by aircraft, there is no evidence that Congress intended to prohibit state and local governments from putting limits on aerial advertising, such as towing signs behind airplanes.

Topic Constitutional Law
Key Words

First Amendment, Advertising, Federal Preemption

C A S E   S U M M A R Y

Honolulu adopted an aerial advertising ordinance as part of a scheme to regulate outdoor advertising to protect visual landscapes. Such landscapes are a critical part of the tourist value of Hawaii. The ordinance effectively bans aerial advertising, such as the towing of banner signs. A group that wanted to promote its position on abortion wanted to hire a plane to tow 100-foot-long banners with its message. It received permission from the Federal Aviation Administration (FAA) to operate in the area, which is densely populated. The group sued the city, contending that the ordinance could not be enforced because it violated the groupís First Amendment speech rights and because the ordinance was preempted by federal law governing control of air space. The district court held in favor of the city and upheld the validity of the ordinance.


Affirmed. The certificate of authority granted by the FAA does not preclude, under the principles of preemption, the enforcement of a municipal ordinance banning the towing of advertising banners. That rule is an area traditionally subject to regulation under the statesí policy power, and there is no clear statement of federal intent to displace local regulatory authority. If Congress so desired, it could regulate the field completely and leave no room for state or local control, but it has not chosen to do so.


Center for Bio-Ethical Reform v. City and County of Honolulu, 455 F.3d 910, 9th Cir., 2006

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