*

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. 
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
No. 02-4340 Chabad, et al. v. City of Cincinnati 5

1

Plaintiff-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 motion 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

Ritchey, is appealed. As deciding the issue of Ritchey’s standing would

require us to examine issues this appeal does not 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. 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. 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.
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

2

Since we agree with the district court that the ban on speech and

events that normally require 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 nongovernmental 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
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-neutraltime, 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

3

The 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. 1995); Lubavitch II, 997 F.2d 1160, 1164 (6th

Cir. 1993); 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

permits simultaneously in November 2001 because the City’s Director of

Public Service had advised Rabbi Kalmanson that it would be in Chabad’s

best interest to apply as early as possible as 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. Although this history

is of limited proba tive value in evaluating the current ordinance, not in

force in November 2001, the district court properly noted that it could

inform its understanding of the present evidence regarding the City’s

purpose and intent in enacting the ordinance. See Lubavitch 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

ordinancewasto 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 exclusivecontrol 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
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 cannot be unconstitutional simply

because of a bad 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.

4

If 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

presumably has some content, and we do not wish to imply that the

government is engaged in content 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 forummust

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
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.