* The Honorable Joseph M. Hood, United States Distr ict Judge for the

Eastern District

of Kentucky, sit

ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0098P (6th C ir.) File Name: 04a00 98p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ C HABA D OF S OUTHERN O HIO & C ONGREGATI ON L UBAVITCH ; P ETER R ITCHEY ,

Plaintiffs- Appellee s,

v.

C ITY OF C INC INN ATI , Defenda nt-Appel

lant. X - - - -
> , - - - - - N No. 02-4340

Appeal from the United States District Court for the So uthern D istrict of

Ohio at Cincinnati. Nos. 02-00840; 02-00880—Susan J. Dlott, District Judge.

Argued: October 31, 2003 Decided and Filed: April 5, 2004
Befor e: BATCHELDER and COL E, Circuit Judges; HOOD, District Judge. * 2 Chabad, et al. v. City

of Cincinna ti No. 02-4340

_________________ COUNSEL
ARGUED: Richard Gan ulin , ASSISTANT CITY SOLICITO R, Cincinnati, Ohio, for Appellant. Marc D. Mezibov, SIRKIN, PINA LES, ME ZIBOV & SCH WART Z, Cin cinna ti, Ohio, for Appellees. ON BRI EF: Richard Ganulin, ASSISTANT CITY SOLICITO R, Cincinna

ti, Ohio, for Appellant. Marc D. Mezibov, Jarrod M. Mohler, SIRKI N, PINA LE S, MEZIBO V & SCHWARTZ, Cincinnati, Ohio, for Appellee s.

_________________

OPINION

_________________ HOOD, District Judge. Plaintiffs-Appellees Chabad of SouthernOhi o and Congregation L ubavitch (hereinafter, “Chabad”) seek t o erect a large menorah display on the main public square in Cincinnati, Ohio, and arg ue that a city ordinance prohibiting any non-government

permit-b ased use of the s quare d

uring the holiday

season vi olates the ir First Amendment

right to free speech. Upon the plaintiffs’ motion, the district court below fou nd that they had demonstra ted a likelihoodof succe ss on the me rits of the ir First

Amendment claim and granted a preliminary injunction forbidding Defendant-Appellant to enforce the or dinance.
The City of Cincinnati appe als f rom the district court decision, arguin

g that th e district court abused its discretion ingranti ng Pl a intiffs-Appellees’ motion for preliminary injunction and enjoi ning De fendant-Appella nt from enforcing a city ordinance

. F or the reasons that follow, we affirm the decision of the district court.No. 02-4340 Chabad, et al. v. City

of Cincinna ti 3

I. FACTUAL AND PROCEDURAL HISTORY
OnNovembe

r 1, 2001, Rabbi S holom B. Kalmanson app lied for a permit allowing Chabad to erect a Cha nu ka h Menorah on Fountain Square in Cincinnati, Ohio (he reinaf ter, the “City”), during

the 2001 Chanukah

celebr ation. He simultane ously

filed an application for the 2002 season. Rabbi Kalmanson stated t hat he submitted such an ear ly applicationfor the 2002 celebration be ca us e D ar yl Brock, the City’s Director of Public S ervic e had advised him that the City was gr anting p ermits on a

“first come, first ser

ved” ba sis inan effort to curb the Ku Klux Klan’s ability to erec t a cross onFountai n Square and that i t would be

in Chabad ’s best interest to apply as ea

rly as possible.
Cha bad erected a Menorah in 2001, the eleve nt h consecutive year tha

t it had done so . Downtow

n Cincinna

ti Incorporated

also cons tru cted a large display in the Square durin g t he 2001 ho liday

season. I

n late June

or earl y July 2002, Rabbi Kalmanson learned that Chabad’s app lica tion for
a permit to erect the Menorah duri ng the 2002 Chanukah celebration

was denied

based on the enactment of Ordinance No. 0122-200 2, amendi ng Cinci nnati Mu

nic ipal Code (“CMC”) sections

713-1 thr ough 713 -9 and 71 3-99 and with
aneffe ctive date of May 16, 2002. The newly a mended C MC § 713-1 sta

ted that the City

“shall exercise it s right to exclusive use” of

Fountain Square “during the last two weeks of Novembe

r, the mon

th of Dec ember, a

nd the firs t week in Ja nuary...,” a period including the 2002 Chanukah c elebra ti o n and the proposed display

of th e me nor ah. CM C § 713 -1. It continue s: The City has an inher en t r ig ht to co nt ro l i ts pr op er ty, whichincludes

a right to close a previo usly open for um. During times of

exclusive use by

the City of Cincinnati, the Cit y will bear the ultimate re sponsibility for the content of the d is play or eve

nt. No other party, othe r thanthe City

of Cincinnati, may

make dec isions with regard to any aspect of the event and/or display . No 4 Chabad, et al. v. City

of Cincinna ti No. 02-4340
private participation w ith regard to any aspect of the event and/or display will be

p ermitted at this time. However, the City may

acc ept donations or funds from other entities for the event and/or di s play which is the subject of ex clusive u se. As a r esult of it s sole
re sp on si bi li ty, owne rship, management and control by the City of Cincinnati during times of exclusive us e, it is recognized the City

is engaging in gove

rnment speech.
Id

. The stated purpose for amended § 713 was iden tified i n Ordinance No. 01 22-2002 a s follows:
Withexclusive control over its content and design, the City will be ab le to ensure that the winter holiday display is safe, well-coordinated, invi t ing, and appeals to the widest of audiences for purposes of suppor t ing and permitting the City’s specif ic government interests....
Or dinance No. 0122-2002. These interests are listed, a s follows: (1) to better coordinat e competing uses of Fou ntain 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 de ve lo pm en t o f t he Ci nc in na ti bu si ne ss ec on om y; (5) to maintain, de velo p, and increase employ ment opportunities for those who live, work, an d may consider moving to Cincinnati, and the Cinci nn ati region; and (6) to pursue e fforts to p romote the expansion of the population residing within Cincinnati and toNo. 02-4340 Chabad, et al. v. City

of Cincinna ti 5

1 Plaint iff

-Appel le e Peter

Edward Ri tche y has made a t radi ti on of dres s ing as Santa Claus and distri buting leaf

lets on Fountain Square during the hol iday s eason. Cons olidat ion of h is cas e wit h the Chabad
case was condit ionally permit ted by the dist

rict judge at t

he beginning of the hearin g on the motio n for p relimina ry injunc tion, al lowing for a response by the def

endant . I n it s bri ef, Defendant- App ell ant has questi oned Ritchey’s standing to chal lenge the ordinance. We, however, note that in a fac ial chall enge such as thi s where one party has st anding,
we need not consider the issue of the standi ng of other parties to the action

. See, e .g. , Bowsher v. Synar , 478 U.S. 714 , 721 (1986 ). Further,
we note tha t t

he di str ict

cou rt gr an ted Chabad’s motion for preliminary inj unct ion and that order, in w hich no rel ief

is dire cted speci fica lly at Ritche y, is appealed. As deciding the issue of Ritch ey’s stand ing wo uld requ ire us to examine issues this app eal does no t otherwise requ ire us to decide (i. e. wh ether Ritchey’s conduct is covered by the regulati on; whether the narr owing con struc tion is bin ding) , we sha ll not ad dress it here. specific ally

enco urag e, stimulate, and develop an expanding downtown resident population. CMC § 713-1. Following the denial of

the permit application, Kalmanson st a ted that he attempted to negotiate the permit matter over many months but that h is ca lls to vari ous city officia ls, including the mayor, we re never returned or that he wa s otherwis e rebuff

ed. Plaint

iffs-Ap pellees filed the ir verif

i ed complaint against the C ity on November 12, 2002. On Nove mb er

13, 2002, Chabad moved for a temporary restrainingorder and preliminar y i njunction. After a November

25, 2002, hearin g, t he district court granted Plaintiffs-Appellees mo ti on fo r p re li mi na ry i nj unction on November

27, 200 2 an d consolidated the matter with that captioned Ritchey v . City of Cincinna ti , Case No. C-1-02- 880. 1 The Sixth Circu it Co urt of Appeals entered a stay of the order enjoiningenforc ement. Justi ce Steve ns, writing as Circuit Justice, subsequently vacated that stay on November 29, 2002. 6 Chabad, et al. v. City

of Cincinna ti No. 02-4340

II. STANDA

RD OF RE VIEW
“Whe n ruling on a motion for a preliminary injunction, a dis tr ict court mus t conside

r and bal ance fo

ur fact ors: (1) whether the movant

has a strong likelihood of success on t he merits; (2) whether the movant would suffer irrepar abl e injury w it hout the injunction; (3) whether issuance of the injunction would ca

use substa

ntia l harm to others; and (4) whether

the public

interest would be served by

issuance of the injunction.” Blu e Cro ss & Blue Shield M ut. of Ohio v. Colu mbia /HCA Healthcare Corp., 110 F.3d 3 18, 322 (6 th Cir. 1997) (citations omitted).
We review a

district c ourt's g

rant of a

prelim ina ry injunction for abuse of discretion. Mascio v. Pub. Employees Ret. Sys. of Oh io , 160 F.3d 310 (6th Cir. 1998). “The injunction w ill seldom be disturbed unless the district court relied upon clea

rly errone ous findin

gs of fa ct, improp erly applied t he governing law, or used a n erroneous legal
s tandard. Id. at 312. “T his Court ‘ will reve

rse a dis tric t court’s weighing and

balanc ing of the equities only in the rarest of circumstances.’” Id . (quo ting Moltan Co. v. EaglePicher 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. Chaba d seeks to use a tra ditional pu

blic forumfor expressive activities during the seven week period for which the

City ’s ordina

nce proh ibits all us e of the t

ype in whichChabad seeks to engage. See Congregation of Lubavitch v. City of Ci

ncinnati , 997 F.2d 1160, 1164 (6th Cir. 1993) (hereinafter, “

Lubavitch II

”) (finding Fountain Square to be “tra ditional public forum”). Thus, Chabad faces an imminent and concrete injury in fact, directly

traceable to the City’s ordinance, that is re dressab le by a decisi on in

its favor.No. 02-4340 Chabad, et al. v. City

of Cincinna ti 7

See Cleveland Branch, N.A.A.C.P. v. City of Parma , 263 F.3d 513, 524 (6th Cir. 2001).
The City challenge s Chab ad’s s tanding on the basis that Chabad did not exhaust its administrative remedies. Without decidingwhether a party wou l d ever ha

ve to exhau st administrative remedies in order to bri ng a facial c

halleng e to a regula tory scheme u nder the free sp eech cl ause of t

he First Amendmen

t, we note that there is no administr ative ap peals process available to Chabad in this case. The City provides
anappeals

process for the denial of a per

mit where the perm it seeker contends that its ap plication meets the requirements of the City’s permitting

scheme. See § 713-4(i) (statingthat “the sole issue to be decided [on appeal of the denial of thepermit to the city

manage r] is wheth er the a

pplication meets t

h e requ irements

of this chapter [§ 713] and the city man ager s rules and regulat ions fo r the use of Fountain Square”). However, the portions of § 713 chall enged in this case do not act as a permitting scheme at all. Rather, they constitute a flat prohibition onall use of the square o f the ty pe that r equires a permit during the rest of the y

ear. Cha bad did not nee d to appeal the denial of its pe rmit appli cation in an appe als process that on ly gives the c ity manag er authority to dec ide the one issue upon whi ch the parties agree, that § 713 prohibits Chabad’s intended use.
B. LIKELIHOODOF SUCCE SS ON THE MERIT S
The City of Cinci nnat i enacted Ordinance No. 0122-2002 inorder to reserve for

itself exclusive

use of F ountain

Square for a seven week pe riod i nclud ing t he last two weeks of November, all of De cember , and the f irst week of

Ja nu ar y. Appellee Chabad sought to enjoin the City from enforcing the ordinance on several grounds. Finding t hat Chabad had a “stron g likelihood

” of succ ess on its f

ree spe ech cla

im, th e districtcourt

did not add

ress any of Chaba d’s other ground s. The district c ourt did no t abuse its disc retion when it concluded

that the ordinance was a content-based re gulation of pr iv at e s pe ec h t ha t d oe s n ot me et st ri ct sc ru ti ny. 8 Chabad, et al. v. City

of Cincinna ti No. 02-4340

2 Since w e agre e with the di strict court that t

he ban on speech and
even ts that nor mally req uire a p ermit, as desc ribed in the C ity Ma nage r’s
memor andu m, is uncons ti tut ional , we need not consider whether the l ette r is bind ing up on the City. 1. NARROWIN G CONSTRU CTION
As an initial

matter, t he City submits that the district court abused its discretion by failing to consider a memorandum fromthe Ci ty Manager a s a “nar rowin g cons truction” of the ordinanc e. The me

morandum

provides , in rele

vant par t:
Inenforcing the listed provisions, please note tha t th e City’s use o f

Fountain

Square me

rely imposes a restrict ion prohibiting the types of private displays or events that would normally be allowed o n the Square following the issua

nce of a permit... .All oth er types of expression (i.e., carry

i ng political signs, handing out leaflet s) will of co

urse be permitted on Fountain Square during this period.
J.A. 5 06. The memorandum draws a distinction between activities onFountain

Square that requi

re a per mit and thos e that do not. The di stinction drawn is clear from the face of the statute, and the memorandum offers no real clar ification
onthe application of the ordinancethat is notavailable from the language of § 713 itself. This is exactly how the district court considered the ordinance: as a “f lat ban on all nongovernmentaluse of

the Foun tain Square for which on e would normally require a permit .” Chabad of

Southern Ohio v. City of Cincinn ati , 233 F. Supp. 2d 975, 985 (S.D. Ohio 2002) (emphas is added). Appellant has pointed to no evidence that the districtcour t took a broader view of the ordinance than that contained in the memorandum and, thus, the districtcourt did not abuse its discretion. 2No. 02-4340 Chabad, et al. v. City

of Cincinna ti 9

2. MANNER OF SPEECH
The City argue s that “the

re is no f ree spe ech rig

ht to leave
an unattended private structure on public property .” Appellant’s Brief

at 10. To the contrary

, whethe r there is sucha right depends upon the property a nd the government’s regulation

of that property. We ha

ve prev ious ly recog

nized that the display

of an obje ct such a s a menor ah is expressive activity for purposes of the First Amendment. See Lubavitch II , 997 F.2d at

1164 ( citi ng Texas v. Johnson , 491 U.S. 397, 404 (1989)).
The question i

n this cas e is whether Chaba d has a ri ght to engage in this type of expressive conduct inFountain Square. When the property is a tr aditional public forum, such as Fountain Square, “a State's right to limit protected expressive activity is sharply circumscr

ibed: It may

impose rea so nable, content-neutral time , place, and manner restrictions.” Capitol Square Review &

Advisory Bd. v. Pinett

e , 515 U.S. 753, 761 (199 5 ). A manner restriction is a restriction on the manner,
or mode, of speech

allowed in a public forum. A blanket ban
onunattended structures, for example, is

a manner restriction that may pass constitutional muster. See id. ; Congregation of Lubavitch v. City of Ci

ncinnati , 923 F. 2d 458, 4 60 (6th Cir. 1991) (hereinafter, “Lubavitch I ”). The City of Cincinnati, however, does not have such a blanke t ban on unattended structur es. Inde ed, § 713 e

xplicitly auth o rizes such use of Fountain Square with a permit forty -five weeks of the y

ear. Thus, Chabad has a First Amendmen t protect ed righ t to leave freestanding unattended structures on Fountain Square, limitedonly by

content-based restrictions that satisfy strict scrutiny and reasonable, content-neutral time, place , and
manner r estricti ons.
3. CONTENT-BA SED LIMITATI ON
The City argue s on appeal that the distri ct court

incorre ctly concluded

that the s tatute was content based and thus 10 Chabad, et al. v. City

of Cincinna ti No. 02-4340

3 The dist

rict court not ed, as wel l, t

hat the City has a

long his tory

of tryi ng to regul ate speec h in Fount ain Square , enac tin g a parade of ordinances that

have att empt ed to prohibi t unpopula r or contr oversi al speech on th at pri me real esta te. See Knight Rider s of the Ku Kl

ux Klan , 72 F.3d 43, 46 ( 6th C ir. 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 pre sent ed te sti mony t hat it appli ed for

it s 2001 and 2002 perm its simultaneously in No vemb er 200 1 beca use the Cit y’ s Dir ector of Pub lic Service had advi sed Rabbi Ka lmans on tha t it would be in C hab ad’s best interest to apply as early as possible as the City was grant ing perm its
on a “first come, fi rst served” b asis in an eff ort to curb the Ku Klux Kla n’s ability to erec t a cros s on F ounta in Square. Although this history is of limite d pr oba tiv e value in evalu ating the c urren t ordin ance , not in force in Nove mber 2 001 , the dist rict cour t prop erly note d that it co uld inform i ts unde rstand ing of the prese nt evid ence regar ding the City’s purpo se and intent in enac ting the o rdina nce. See Luba vitch II , 997 F. 2d at 11 64. incorre ctly

applied strict scrutiny to the ordinanc e. We f ind that the distri ct court

did not abu se its discretion in th is wa y. The level of scrutiny

applied to restrictions on speech in a traditional public forum depends on whether the regula

tion is
c ontent based or content neutral. See Per ry Educ. Ass’

n v

. Perry Local Educators’ A ss ’n , 460 U.S. 37, 45 (1983). Alth ough the City’s ordinance a ppears content

neutral on its face – p rohibiting all priva te speech t

hat norma

lly r equires a permit – the district

court co ncluded t

hat it was de facto content based be cause the Ci ty ’s purpos e in passi ng this ordin ance was to pro hibit controversial and unpopular content frombeing expressed in the Square during the holiday season. The district c ourt was n

o t clearl y e rroneou s in reac

hing this factual conclusion.
The district court concluded that the present ordinance was motivated by a des ire to prevent unpopular or controversial speech, in part, because the ordinance itself makes explicit the City’s intent to pr

ohibit such speech

because the exclu s ivecontrol provision

was desi gned to permit the city to ensure that the win

ter holiday display

“appeals to the widest of audiences.” 3 Ordinance No. 01 22-2002. The dist r ict courtNo. 02-4340 Chabad, et al. v. City

of Cincinna ti 11

The Court, of course, evaluat es each ordinance on its own merits and would not fi nd ag ain st

th e Ci tymere lybeca use of i ts pri or ba d act s. An ot he rwise cons titutional re gulation canno t be un con stitutional sim ply because of a ba d histo ry on the part o f a gov ernm ent entity. Non etheless, in a case such a s th is, th e Ci ty ’s pas t a cti ons reg ardi ng t he s ame f

orum , parties, and c onduc t c an i nf orm th e inquiry into the City’s purpose regarding a new ordin ance and th e meaning of the e vi den ce av ailable regardi ng the n ew ordinance

. 4 If the ordinance were read merely to indi cate the ty pe of speech the City int ended to prese nt when it a cted as a speaker in the squ are, it wo uld not matter whether t

he City int end ed its sp eech t o appeal to a w ide audience or to be unco ntrov ersial b ecau se “whe n the Sta te is the speaker, it may make content

based choices .” Rosenber ger v. Rector

& Vis it ors of Univ. of Va ., 515 U.S. 819, 833 (1995). All government speech presu mab ly has s ome cont ent, and we do not w ish to i mpl y tha t the governm ent is engaged in co ntent discrimination every time it spea ks. reasoned that “[b]y

excluding

from t he publ ic discourse on Fountain Square sp eech wh

ich would

not appea

l to ‘th e widest of audiences,’ the City

wishes to eliminate speech whichmight be controversial or offensive to t hose visiting downtown Cincinnati.” Chabad , 233 F. Supp. 2d at 984.
Alth ough the lang

uage in the ordinanc e about a

ppealing “to the widest of

audienc es” might be read as merely describing the type of spee ch in which the City wishe d to engage, the districtcourt’s conclusion that this language indicates a desire to eliminate con trove rsial or o ffensiv e speec h is amply supported in the record. 4 For example, the ordinance explains that appea ling “to the widest of audie nces” is why it is exerting exclusive control
, not why it is speaking in the first place. See Ordinanc e No. 0122-2002 (“With exclusive control over its content and design, the Ci ty w ill be able

to ensure that the w

inter disp lay ...appeals to the widest of audiences....”). This suggests that the ex clusive-u se provision is at least a s much ab out excludi ng othe r messag es as it is about giving the City the

opportunity to delive r i ts own. Thus, the district

court’s factualdetermination that the City’s 12 Chabad, et al. v. City

of Cincinna ti No. 02-4340

purpose in enacting the ordinance was to preve nt unp opular and contr oversia l speech is not clea

rly errone ous. The district court did n ot ab use its disc retion when it concluded

– based on its factual finding regarding the City ’s purpose – that the excl usi ve-control provision was content based. Distinctions between speech that is “acceptable” because it appea ls to “the widest audiences” and speech that is too “cont

roversi al” or un

popula r to appeal to a wide audience are distinctions based on content. See United Food & Co mmerc ial Wo rkers’ U nion, Loca l 1099 v. S

outhwest Ohio Re g’l Transit Auth. , 163 F.3d 341 (6th Cir. 1998); Police Dep’t of City of Chicago v. M osley , 408 U.S. 92, 96 (1972).
Content- based restrictions on speech in a public for um mus t be narr ow ly t ailored to achieve a compelling g overnment inter est. Perry Educ. Ass’n , 460 U.S. a t 45. The City , focusingits arguments on whether or not strict

scrutiny is the inappropriatestandard of review in this matter, has not argued
onappeal that the i nteres ts provided in the ordinance are “comp e lling gover

nment inte

rests” or that the

ordinanc e is
narrowly tai lored to s

uch inter ests, and we shall n

ot revisit this aspect of the district court’s opinion.
C. IRREPA RABL E HARM TO PLA INTI FF Defendant-Appellant

sugge sts that Pla

intiffs- Appelle es ’ mot ion for a preliminary

injunction could have been d enie d by the district court solely on “equitable” grounds and urges
us reverse the district court’s decision on these grounds alone. We under stand t his to be an attack on the district court’s decisionthat the movant would suff er irreparable injury without the injunction. Specifi c al ly, the City arg ues that Chabad’s need for a preliminary

injunction was contrived, arising only as a res ult of Appellees’ own

delay in filing

their complaint and motion for a prelimina

ry injunction . Chabad l earned that it sNo. 02-4340 Chabad, et al. v. City

of Cincinna ti 13
applicationfor a permit was denied s ix mont hs prior to the date Chabad a

ctually filed this lawsuit and, in the meantime, “appar ently attempte d to lobby

individua

l City officials who did not possess legal authority to overri de 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 irre para ble injury sufficient to justify injunctive relief.” Newsome v. No rris , 888 F.2d 371, 378 (6th Cir. 1989). Considering the strength of Appellee’s ca se and the City’s subsequent

failure to m a ke a strong showi ng with r egard to the district judge’s conclusions of law, as discussed above, we do not find th

is delay to be sufficient grounds for a reversal of the district court’s decision to grant the pre limin ary injunction. The distr

ict cour t did not ab

use its d iscretio n when it concluded, based on Chabad’s likelihood

of succe ss onthe me rits and th e seri ousne ss of a ny infrin ge ment up on First Amendment

rights, that Chabad

faced irreparable har

m despite having waited to file the lawsuit.
D. NO IRREP

ARABLE HAR

M TO CITY The district court noted that “[n]o substantial harmcan be shownin the enj oinment of an uncon sti tu tional policy,” nor has the City arg

ued any particular ir

repara ble harm that it faces. Chabad , 233 F. Supp . 2d at 987 (c itin g Deja Vu of Nas hvi lle, Inc. v. Metro. Gov’t of Nashville and Davidson County, Tennessee , 274 F.3d 3 7 7, 400 (6th Cir. 2001), cert. denied , 535 U.S. 1073 (2002)).
E. PUBLIC INTEREST SERVE D BY INJUN CTION
Fi na ll y, the public interest is served by prev enting the violation of constitutional rights. Id

.

VI. CONCL USION Havingconsidered the record inthis matter, we determine that the dis t rict cou

rt did not a

buse its dis cretion

when it 14 Chabad, et al. v. City

of Cincinna ti No. 02-4340
granted Chabad’ s motion for

a prelimi

na ry injunction and enjoined the City from enforc ing CMC § 713

. For the
reasons stated above, we AFFIRM the decision of the district court.