Chabad of Southern Ohio & Congregation Lubavitch; Peter Ritchey v. City of Cincinnati

*The Honorable Joseph M. Hood, United States District Judge for the
Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0098P (6th Cir.)
File Name: 04a0098p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CHABAD OF SOUTHERN OHIO
& CONGREGATION
LUBAVITCH; PETER RITCHEY,
Plaintiffs-Appellees,
v.
CITY OF CINCINNATI,
Defendant-Appellant.
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No. 02-4340
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
Nos. 02-00840; 02-00880—Susan J. Dlott, District Judge.
Argued: October 31, 2003
Decided and Filed: April 5, 2004
Before: BATCHELDER and COLE, Circuit Judges;
HOOD, District Judge.*
2 Chabad, et al. v. City of Cincinnati No. 02-4340
_________________
COUNSEL
ARGUED: Richard Ganulin, ASSISTANT CITY
SOLICITOR, Cincinnati, Ohio, for Appellant. Marc D.
Mezibov, SIRKIN, PINALES, MEZIBOV & SCHWARTZ,
Cincinnati, Ohio, for Appellees. ON BRIEF: Richard
Ganulin, ASSISTANT CITY SOLICITOR, Cincinnati, Ohio,
for Appellant. Marc D. Mezibov, Jarrod M. Mohler, SIRKIN,
PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for
Appellees.
_________________
OPINION
_________________
HOOD, District Judge. Plaintiffs-Appellees Chabad of
Southern Ohio and Congregation Lubavitch (hereinafter,
“Chabad”) seek to erect a large menorah display on the main
public square in Cincinnati, Ohio, and argue that a city
ordinance prohibiting any non-government permit-based use
of the square during the holiday season violates their First
Amendment right to free speech. Upon the plaintiffs’ motion,
the district court below found that they had demonstrated a
likelihood of success on the merits of their First Amendment
claim and granted a preliminary injunction forbidding
Defendant-Appellant to enforce the ordinance.
The City of Cincinnati appeals from the district court
decision, arguing that the district court abused its discretion
in granting Plaintiffs-Appellees’ motion for preliminary
injunction and enjoining Defendant-Appellant from enforcing
a city ordinance. For the reasons that follow, we affirm the
decision of the district court.

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No. 02-4340 Chabad, et al. v. City of Cincinnati 3
I. FACTUAL AND PROCEDURAL HISTORY
On November 1, 2001, Rabbi Sholom B. Kalmanson
applied for a permit allowing Chabad to erect a Chanukah
Menorah on Fountain Square in Cincinnati, Ohio (hereinafter,
the “City”), during the 2001 Chanukah celebration. He
simultaneously filed an application for the 2002 season.
Rabbi Kalmanson stated that he submitted such an early
application for the 2002 celebration because Daryl Brock, the
City’s Director of Public Service had advised him that the
City was granting permits on a “first come, first served” basis
in an effort to curb the Ku Klux Klan’s ability to erect a cross
on Fountain Square and that it would be in Chabad’s best
interest to apply as early as possible.
Chabad erected a Menorah in 2001, the eleventh
consecutive year that it had done so. Downtown Cincinnati
Incorporated also constructed a large display in the Square
during the 2001 holiday season. In late June or early July
2002, Rabbi Kalmanson learned that Chabad’s application for
a permit to erect the Menorah during the 2002 Chanukah
celebration was denied based on the enactment of Ordinance
No. 0122-2002, amending Cincinnati Municipal Code
(“CMC”) sections 713-1 through 713-9 and 713-99 and with
an effective date of May 16, 2002. The newly amended
CMC § 713-1 stated that the City “shall exercise its right to
exclusive use” of Fountain Square “during the last two weeks
of November, the month of December, and the first week in
January...,” a period including the 2002 Chanukah celebration
and the proposed display of the menorah. CMC § 713-1. It
continues:
The City has an inherent right to control its property,
which includes a right to close a previously open forum.
During times of exclusive use by the City of Cincinnati,
the City will bear the ultimate responsibility for the
content of the display or event. No other party, other
than the City of Cincinnati, may make decisions with
regard to any aspect of the event and/or display. No
4 Chabad, et al. v. City of Cincinnati No. 02-4340
private participation with regard to any aspect of the
event and/or display will be permitted at this time.
However, the City may accept donations or funds from
other entities for the event and/or display which is the
subject of exclusive use. As a result of its sole
responsibility, ownership, management and control by
the City of Cincinnati during times of exclusive use, it is
recognized the City is engaging in government speech.
Id.
The stated purpose for amended § 713 was identified in
Ordinance No. 0122-2002 as follows:
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
permitting the City’s specific government interests....
Ordinance No. 0122-2002. These interests are listed, as
follows:
(1) to better coordinate competing uses of Fountain
Square;
(2) to ensure equal access to Fountain Square;
(3) to promote and develop tourism and recreation;
(4) to encourage, promote, simulate, and assist in the
development of the Cincinnati business economy;
(5) to maintain, develop, and increase employment
opportunities for those who live, work, and may
consider moving to Cincinnati, and the Cincinnati
region; and
(6) to pursue efforts to promote the expansion of the
population residing within Cincinnati and to

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No. 02-4340 Chabad, et al. v. City of Cincinnati 5
1Plaintiff-Appellee Peter Edward Ritchey has made a tradition of
dressing as Santa Claus and distributing leaflets on Fountain Square
during the holiday season. Consolidation of his case with the Chabad
case was conditionally permitted by the district judge at the beginning of
the hearing on the motio n for preliminary injunction, allowing for a
response by the defendant. In its brief, Defendant-Appellant has
questioned Ritchey’s standing to challenge the ordinance. We, however,
note that in a facial challenge such as this where one party has standing,
we need not consider the issue of the standing of other parties to the
action. See, e.g., Bowsher v. Synar, 478 U.S. 714 , 721 (1986 ). Further,
we note that the district court granted Chabad’s motion for preliminary
injunction and that order, in which no relief is directed specifically at
Ritche y, is appealed. As deciding the issue of Ritchey’s standing would
require us to examine issues this app eal does no t otherwise require us to
decide (i.e. whether Ritchey’s conduct is covered by the regulation;
whether the narrowing construction is binding), we shall not address it
here.
specifically encourage, stimulate, and develop an
expanding downtown resident population.
CMC § 713-1.
Following the denial of the permit application, Kalmanson
stated that he attempted to negotiate the permit matter over
many months but that his calls to various city officials,
including the mayor, were never returned or that he was
otherwise rebuffed. Plaintiffs-Appellees filed their verified
complaint against the City on November 12, 2002. On
November 13, 2002, Chabad moved for a temporary
restraining order and preliminary injunction. After a
November 25, 2002, hearing, the district court granted
Plaintiffs-Appellees motion for preliminary injunction on
November 27, 2002 and consolidated the matter with that
captioned Ritchey v. City of Cincinnati, Case No. C-1-02-
880.1 The Sixth Circuit Court of Appeals entered a stay of
the order enjoining enforcement. Justice Stevens, writing as
Circuit Justice, subsequently vacated that stay on November
29, 2002.
6 Chabad, et al. v. City of Cincinnati No. 02-4340
II. STANDARD OF REVIEW
“When ruling on a motion for a preliminary injunction, a
district court must consider and balance four factors:
(1) whether the movant has a strong likelihood of success on
the merits; (2) whether the movant would suffer irreparable
injury without the injunction; (3) whether issuance of the
injunction would cause substantial harm to others; and
(4) whether the public interest would be served by issuance of
the injunction.” Blue Cross & Blue Shield Mut. of Ohio v.
Columbia/HCA Healthcare Corp., 110 F.3d 318, 322 (6th
Cir. 1997) (citations omitted).
We review a district court's grant of a preliminary
injunction for abuse of discretion. Mascio v. Pub. Employees
Ret. Sys. of Ohio, 160 F.3d 310 (6th Cir. 1998). “The
injunction will seldom be disturbed unless the district court
relied upon clearly erroneous findings of fact, improperly
applied the governing law, or used an erroneous legal
standard. Id. at 312. “This Court ‘will reverse a district
court’s weighing and balancing of the equities only in the
rarest of circumstances.’” Id. (quoting Moltan Co. v. Eagle-
Picher Indus., Inc. 55 F.3d 1171, 1175 (6th Cir. 1995)).
III. DISCUSSION
A. STANDING
Chabad has standing to bring a facial challenge against the
City’s ordinance. Chabad seeks to use a traditional public
forum for expressive activities during the seven week period
for which the City’s ordinance prohibits all use of the type in
which Chabad seeks to engage. See Congregation of
Lubavitch v. City of Cincinnati, 997 F.2d 1160, 1164 (6th Cir.
1993) (hereinafter, “Lubavitch II”) (finding Fountain Square
to be “traditional public forum”). Thus, Chabad faces an
imminent and concrete injury in fact, directly traceable to the
City’s ordinance, that is redressable by a decision in its favor.

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No. 02-4340 Chabad, et al. v. City of Cincinnati 7
See Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d
513, 524 (6th Cir. 2001).
The City challenges Chabad’s standing on the basis that
Chabad did not exhaust its administrative remedies. Without
deciding whether a party would ever have to exhaust
administrative remedies in order to bring a facial challenge to
a regulatory scheme under the free speech clause of the First
Amendment, we note that there is no administrative appeals
process available to Chabad in this case. The City provides
an appeals process for the denial of a permit where the permit
seeker contends that its application meets the requirements of
the City’s permitting scheme. See § 713-4(i) (stating that “the
sole issue to be decided [on appeal of the denial of the permit
to the city manager] is whether the application meets the
requirements of this chapter [§ 713] and the city managers
rules and regulations for the use of Fountain Square”).
However, the portions of § 713 challenged in this case do not
act as a permitting scheme at all. Rather, they constitute a flat
prohibition on all use of the square of the type that requires a
permit during the rest of the year. Chabad did not need to
appeal the denial of its permit application in an appeals
process that only gives the city manager authority to decide
the one issue upon which the parties agree, that § 713
prohibits Chabad’s intended use.
B. LIKELIHOOD OF SUCCESS ON THE MERITS
The City of Cincinnati enacted Ordinance No. 0122-2002
in order to reserve for itself exclusive use of Fountain Square
for a seven week period including the last two weeks of
November, all of December, and the first week of January.
Appellee Chabad sought to enjoin the City from enforcing the
ordinance on several grounds. Finding that Chabad had a
“strong likelihood” of success on its free speech claim, the
district court did not address any of Chabad’s other grounds.
The district court did not abuse its discretion when it
concluded that the ordinance was a content-based regulation
of private speech that does not meet strict scrutiny.
8 Chabad, et al. v. City of Cincinnati No. 02-4340
2Since we agree with the district court that the ban on speech and
events that normally req uire a permit, as described in the City Manager’s
memorandum, is unconstitutional, we need not consider whether the letter
is binding upon the City.
1. NARROWING CONSTRUCTION
As an initial matter, the City submits that the district court
abused its discretion by failing to consider a memorandum
from the City Manager as a “narrowing construction” of the
ordinance. The memorandum provides, in relevant part:
In enforcing the listed provisions, please note that the
City’s use of Fountain Square merely imposes a
restriction prohibiting the types of private displays or
events that would normally be allowed on the Square
following the issuance of a permit....All other types of
expression (i.e., carrying political signs, handing out
leaflets) will of course be permitted on Fountain Square
during this period.
J.A. 506. The memorandum draws a distinction between
activities on Fountain Square that require a permit and those
that do not. The distinction drawn is clear from the face of
the statute, and the memorandum offers no real clarification
on the application of the ordinance that is not available from
the language of § 713 itself. This is exactly how the district
court considered the ordinance: as a “flat ban on all non-
governmental use of the Fountain Square for which one would
normally require a permit.” Chabad of Southern Ohio v. City
of Cincinnati, 233 F. Supp. 2d 975, 985 (S.D. Ohio 2002)
(emphasis added). Appellant has pointed to no evidence that
the district court took a broader view of the ordinance than
that contained in the memorandum and, thus, the district court
did not abuse its discretion.2

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No. 02-4340 Chabad, et al. v. City of Cincinnati 9
2. MANNER OF SPEECH
The City argues that “there is no free speech right to leave
an unattended private structure on public property.”
Appellant’s Brief at 10. To the contrary, whether there is
such a right depends upon the property and the government’s
regulation of that property. We have previously recognized
that the display of an object such as a menorah is expressive
activity for purposes of the First Amendment. See Lubavitch
II, 997 F.2d at 1164 (citing Texas v. Johnson, 491 U.S. 397,
404 (1989)).
The question in this case is whether Chabad has a right to
engage in this type of expressive conduct in Fountain Square.
When the property is a traditional public forum, such as
Fountain Square, “a State's right to limit protected expressive
activity is sharply circumscribed: It may impose reasonable,
content-neutral time, place, and manner restrictions.” Capitol
Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761
(1995). A manner restriction is a restriction on the manner,
or mode, of speech allowed in a public forum. A blanket ban
on unattended structures, for example, is a manner restriction
that may pass constitutional muster. See id.; Congregation of
Lubavitch v. City of Cincinnati, 923 F.2d 458, 460 (6th Cir.
1991) (hereinafter, “Lubavitch I”). The City of Cincinnati,
however, does not have such a blanket ban on unattended
structures. Indeed, § 713 explicitly authorizes such use of
Fountain Square with a permit forty-five weeks of the year.
Thus, Chabad has a First Amendment protected right to
leave freestanding unattended structures on Fountain Square,
limited only by content-based restrictions that satisfy strict
scrutiny and reasonable, content-neutral time, place, and
manner restrictions.
3. CONTENT-BASED LIMITATION
The City argues on appeal that the district court incorrectly
concluded that the statute was content based and thus
10 Chabad, et al. v. City of Cincinnati No. 02-4340
3The district court noted, as well, that the City has a long history of
trying to regulate speech in Fountain Square, enacting a parade of
ordinances that have attempted to prohibit unpopular or controversial
speech on that prime real estate. See Knight Riders of the Ku Klux Klan,
72 F.3d 43, 46 (6th Cir. 199 5); Lubavitch II, 997 F.2d 116 0, 11 64 (6th
Cir. 199 3); Lubavitch I, 923 F.2d 458, 460 (6th Cir. 1991). In the present
matter, Chabad presented testimony that it applied for its 2001 and 2002
perm its simultaneously in No vember 200 1 beca use the City’s Director of
Pub lic Service had advised Rabbi Kalmanson that it would be in C habad’s
best interest to apply as early as possible as the City was granting perm its
on a “first come, first served” basis in an effort to curb the Ku Klux
Klan’s ability to erec t a cross on Fountain Square. Although this history
is of limited pr oba tive value in evaluating the current ordinance, not in
force in Nove mber 2 001, the district court prop erly noted that it co uld
inform its understanding of the present evidence regarding the City’s
purpo se and intent in enacting the ordinance. See Luba vitch II, 997 F.2d
at 1164.
incorrectly applied strict scrutiny to the ordinance. We find
that the district court did not abuse its discretion in this way.
The level of scrutiny applied to restrictions on speech in a
traditional public forum depends on whether the regulation is
content based or content neutral. See Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).
Although the City’s ordinance appears content neutral on its
face – prohibiting all private speech that normally requires a
permit – the district court concluded that it was de facto
content based because the City’s purpose in passing this
ordinance was to prohibit controversial and unpopular content
from being expressed in the Square during the holiday season.
The district court was not clearly erroneous in reaching this
factual conclusion.
The district court concluded that the present ordinance was
motivated by a desire to prevent unpopular or controversial
speech, in part, because the ordinance itself makes explicit the
City’s intent to prohibit such speech because the exclusive-
control provision was designed to permit the city to ensure
that the winter holiday display “appeals to the widest of
audiences.”3 Ordinance No. 0122-2002. The district court

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No. 02-4340 Chabad, et al. v. City of Cincinnati 11
The Court, of course, evaluates each ordinance on its own merits and
would not find against the City merely because of its prior bad acts. An
otherwise constitutional regulation canno t be unconstitutional sim ply
because of a ba d history on the part of a government entity. Nonetheless,
in a case such as this, the City’s past actions regarding the same forum,
parties, and conduct can inform the inquiry into the City’s purpose
regarding a new ordinance and the meaning of the evidence available
regarding the new ordinance.
4If the ordinance were read merely to indicate the type of speech the
City intended to present when it acted as a speaker in the square, it would
not matter whether the City intended its speech to appeal to a wide
audience or to be uncontroversial because “when the State is the speaker,
it may make content based choices.” Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 833 (1995). All government speech
presumab ly has some content, and we do not wish to imply that the
governm ent is engaged in co ntent discrimination every time it speaks.
reasoned that “[b]y excluding from the public discourse on
Fountain Square speech which would not appeal to ‘the
widest of audiences,’ the City wishes to eliminate speech
which might be controversial or offensive to those visiting
downtown Cincinnati.” Chabad, 233 F. Supp. 2d at 984.
Although the language in the ordinance about appealing “to
the widest of audiences” might be read as merely describing
the type of speech in which the City wished to engage, the
district court’s conclusion that this language indicates a desire
to eliminate controversial or offensive speech is amply
supported in the record.4 For example, the ordinance explains
that appealing “to the widest of audiences” is why it is
exerting exclusive control, not why it is speaking in the first
place. See Ordinance No. 0122-2002 (“With exclusive
control over its content and design, the City will be able to
ensure that the winter display...appeals to the widest of
audiences....”). This suggests that the exclusive-use provision
is at least as much about excluding other messages as it is
about giving the City the opportunity to deliver its own.
Thus, the district court’s factual determination that the City’s
12 Chabad, et al. v. City of Cincinnati No. 02-4340
purpose in enacting the ordinance was to prevent unpopular
and controversial speech is not clearly erroneous.
The district court did not abuse its discretion when it
concluded – based on its factual finding regarding the City’s
purpose – that the exclusive-control provision was content
based. Distinctions between speech that is “acceptable”
because it appeals to “the widest audiences” and speech that
is too “controversial” or unpopular to appeal to a wide
audience are distinctions based on content. See United Food
& Commercial Workers’ Union, Local 1099 v. Southwest
Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998);
Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 96
(1972).
Content-based restrictions on speech in a public forum must
be narrowly tailored to achieve a compelling government
interest. Perry Educ. Ass’n, 460 U.S. at 45. The City,
focusing its arguments on whether or not strict scrutiny is the
inappropriate standard of review in this matter, has not argued
on appeal that the interests provided in the ordinance are
“compelling government interests” or that the ordinance is
narrowly tailored to such interests, and we shall not revisit
this aspect of the district court’s opinion.
C. IRREPARABLE HARM TO PLAINTIFF
Defendant-Appellant suggests that Plaintiffs-Appellees’
motion for a preliminary injunction could have been denied
by the district court solely on “equitable” grounds and urges
us reverse the district court’s decision on these grounds alone.
We understand this to be an attack on the district court’s
decision that the movant would suffer irreparable injury
without the injunction.
Specifically, the City argues that Chabad’s need for a
preliminary injunction was contrived, arising only as a result
of Appellees’ own delay in filing their complaint and motion
for a preliminary injunction. Chabad learned that its

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No. 02-4340 Chabad, et al. v. City of Cincinnati 13
application for a permit was denied six months prior to the
date Chabad actually filed this lawsuit and, in the meantime,
“apparently attempted to lobby individual City officials who
did not possess legal authority to override the new
ordinance.” Appellant’s Brief at 7. While not condoning any
dallying on the part of Chabad, we note that “[e]ven minimal
infringement upon First Amendment values constitutes
irreparable injury sufficient to justify injunctive relief.”
Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989).
Considering the strength of Appellee’s case and the City’s
subsequent failure to make a strong showing with regard to
the district judge’s conclusions of law, as discussed above, we
do not find this delay to be sufficient grounds for a reversal of
the district court’s decision to grant the preliminary
injunction. The district court did not abuse its discretion
when it concluded, based on Chabad’s likelihood of success
on the merits and the seriousness of any infringement upon
First Amendment rights, that Chabad faced irreparable harm
despite having waited to file the lawsuit.
D. NO IRREPARABLE HARM TO CITY
The district court noted that “[n]o substantial harm can be
shown in the enjoinment of an unconstitutional policy,” nor
has the City argued any particular irreparable harm that it
faces. Chabad, 233 F. Supp. 2d at 987 (citing Deja Vu of
Nashville, Inc. v. Metro. Gov’t of Nashville and Davidson
County, Tennessee, 274 F.3d 377, 400 (6th Cir. 2001), cert.
denied, 535 U.S. 1073 (2002)).
E. PUBLIC INTEREST SERVED BY INJUNCTION
Finally, the public interest is served by preventing the
violation of constitutional rights. Id.
VI. CONCLUSION
Having considered the record in this matter, we determine
that the district court did not abuse its discretion when it
14 Chabad, et al. v. City of Cincinnati No. 02-4340
granted Chabad’s motion for a preliminary injunction and
enjoined the City from enforcing CMC § 713. For the
reasons stated above, we AFFIRM the decision of the district
court.

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