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The menorah this week again became a symbol of freedom, with the U.S. Supreme Court ending Cincinnati City Council’s effort to keep the Jewish symbol off Fountain Square.
Justice John Paul Stevens ended a flurry of legal activity that started Nov. 27 with a federal judge chastising the city for violating the First Amendment — again.
“The city of Cincinnati has a long history of unconstitutional attempts at regulating private speech on Fountain Square,” wrote U.S. District Judge Susan Dlott.
She ordered the city to allow Chabad of Southern Ohio and Congregation Lubavitch to display a menorah on the square and hold a candle-lighting ceremony. The menorah, a candelabrum, symbolizes the ancient Hebrews’ victory over a Syrian king’s efforts to crush their religion.
‘We’re going to control it’
In April, city council passed an ordinance giving the city exclusive use of Fountain Square for the last two weeks of November through the first week of January, citing reasons from supporting downtown business to increasing employment opportunities.
“With exclusive control over its content and design, the city will be able to ensure that the winter holiday display is safe, well coordinated, inviting and appeals to the widest of audiences for purposes of supporting and promoting the city’s specific government interests,” the ordinance states.
In this case, the government interests involve money. The season is an important time for the city financially, and the city wants downtown visitors to feel safe and welcome, according to Councilman Chris Monzel.
“We want to control that space so that it helps to attract people,” he said. “Instead of having a continuing battle over who controls Fountain Square, the city took it back and said, ‘Hey, this is for the public and we’re going to control it for the public interest.’ ”
The ordinance aims to maintain the continuity of the city’s holiday display, according to Assistant City Solicitor Richard Ganulin. The city has installed an ice skating rink, trees and lights on the square. There’s not room left for much more, he said.
“The continuity of the city display without competition from other structures makes the display more aesthetically appealing and attractive to individuals,” Ganulin said.
But Rabbi Sholom B. Kalmanson says the menorah only takes up about 3 feet on the ground and is 18 feet high.
“Cluttered?” he scoffed. “My menorah is cluttering it?”
A menorah has been on the square for 17 years, Kalmanson said.
The mostly unspoken reason for the new ordinance is the Ku Klux Klan, which has sometimes mounted a cross on the square (see Roxanne Is Gone, So Why Is Our Mayor Still Dickless? issue of Dec. 7-13, 2000).
“There’s no question we don’t like the Klan on the Square,” Mayor Charlie Luken said. “People were upset about the Klan, no question about it, and this obviously takes care of that situation and a number of others.”
But the Klan hasn’t even applied for a permit for the past two years, Kalmanson said.
“To me, this seems to be that the city has for some reason a personal stance that there will not be a menorah on the square if they can help it,” he said. “Why all of a sudden wake up a dead horse?”
‘Democracy alive’
The city’s effort to ban the Klan by banning all groups from Fountain Square violates the U.S. Constitution, according to attorney Marc Mezibov, who led the effort to overturn the ordinance.
“It affects any speech of any group who wants to use the square for the purpose it’s been dedicated,” Mezibov said.
The city’s secular holiday display and denial of permits for private groups was an effort at keeping things equal, Monzel said.
“It’s trying to be fair to both sides by saying we’re just going to get rid of all of it,” he said.
But the city’s approach was heavy-handed, violating everyone’s rights, according to Kalmanson.
“(Fountain Square) is the place in the city of Cincinnati that is notorious for expressions of any sort — and you’re telling me for six weeks I have no right to open my mouth there?” he says. “I don’t think I have to give up my right of freedom of speech as a Jew because maybe tomorrow somebody is going to do what they’re going to do.”
Judge Dlott agreed, in terms that seemed to signal the city didn’t have a chance.
“The regulation before the court today is a most outrageous intrusion on the rights guaranteed by the First Amendment,” Dlott wrote. “First, it denies private speakers access to what the city concedes is the ‘widest of audiences.’ Second, it replaces private speech with a city-sponsored display that ‘promote(s) the city’s specific governmental interests.’ And third, it forbids those who might dissent from voicing their opposition on Fountain Square on any comparable forum.”
Dlott ruled the square was designed to be an open forum, a place where people with different points of view can express themselves in the heart of the city.
“The city of Cincinnati may not relegate private expression on Fountain Square to times when fewer people are known to listen, and it may not tell those who wish to speak that they may do so, but only where fewer people will hear them,” Dlott ruled. “Throughout the year Fountain Square must remain for Cincinnati what Speakers’ Corner in Hyde Park is for London: a symbol of democracy alive.”
But the vehemence of Dlott’s language didn’t change city council’s mind; within hours the city filed an appeal.
“I get frustrated when federal judges run the city,” Luken said.
City council acted in response to public requests to do something about the way Fountain Square is used, according to Luken.
“This is one of those situations that you’re damned if you do, damned if you don’t,” he said.
At the city’s request, the U.S. Sixth Circuit Court of Appeals issued a stay of Dlott’s order. But Justice Stevens reversed that decision, ordering the city to allow the menorah. The ruling came Nov. 29, the first day of Hanukkah this year.
‘The most important forum’
The avowed purpose of the new ordinance restricting the use of Fountain Square — economic development — also got short shrift from the federal court. Luken said the ordinance was designed to control the square in order to maximize enjoyment and profitability.
But Mezibov dismissed the idea that the city’s holiday display would bring people flocking downtown.
“If trees were the answer, everybody would be flocking to the forest and not downtown Cincinnati,” he said.
Dlott found the city’s economic argument unconvincing. Banning religious or political expression doesn’t help the economy, she said.
“It is unclear how a flat ban on private speech at any time of the year promotes tourism, stimulates the Cincinnati business economy, increases employment opportunities, promotes the expansion of the population residing in Cincinnati, or advances any of the interests set forth in (the municipal code),” Dlott wrote.
The judge did, however, acknowledge Fountain Square’s unique position in the city — all the more reason, she decided, to throw out the new restrictions.
“The city has attempted to monopolize the most important forum in Cincinnati during the time of year when it is most visited,” she wrote. “There is no venue for speech in Cincinnati which compares to Fountain Square, particularly during the holiday season, and there is no ample alternative channel of communication available to plaintiffs.”
Dlott was present Dec. 2 when the menorah was erected on the square. ©
This article appears in Dec 4-10, 2002.