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

    *
     The Honorable Joseph M. Hood, United States District Judge for the
Eastern District of Kentucky, sitting by designation.

                                  1
No. 02-4340         Chabad, et al. v. City of Cincinnati      3    4      Chabad, et al. v. City of Cincinnati        No. 02-4340

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

        specifically encourage, stimulate, and develop an                                   II. STANDARD OF REVIEW
        expanding downtown resident population.
                                                                                “When ruling on a motion for a preliminary injunction, a
CMC § 713-1.                                                                  district court must consider and balance four factors:
                                                                              (1) whether the movant has a strong likelihood of success on
   Following the denial of the permit application, Kalmanson                  the merits; (2) whether the movant would suffer irreparable
stated that he attempted to negotiate the permit matter over                  injury without the injunction; (3) whether issuance of the
many months but that his calls to various city officials,                     injunction would cause substantial harm to others; and
including the mayor, were never returned or that he was                       (4) whether the public interest would be served by issuance of
otherwise rebuffed. Plaintiffs-Appellees filed their verified                 the injunction.” Blue Cross & Blue Shield Mut. of Ohio v.
complaint against the City on November 12, 2002. On                           Columbia/HCA Healthcare Corp., 110 F.3d 318, 322 (6th
November 13, 2002, Chabad moved for a temporary                               Cir. 1997) (citations omitted).
restraining order and preliminary injunction. After a
November 25, 2002, hearing, the district court granted                           We review a district court's grant of a preliminary
Plaintiffs-Appellees motion for preliminary injunction on                     injunction for abuse of discretion. Mascio v. Pub. Employees
November 27, 2002 and consolidated the matter with that                       Ret. Sys. of Ohio, 160 F.3d 310 (6th Cir. 1998). “The
captioned Ritchey v. City of Cincinnati, Case No. C-1-02-                     injunction will seldom be disturbed unless the district court
880.1 The Sixth Circuit Court of Appeals entered a stay of                    relied upon clearly erroneous findings of fact, improperly
the order enjoining enforcement. Justice Stevens, writing as                  applied the governing law, or used an erroneous legal
Circuit Justice, subsequently vacated that stay on November                   standard. Id. at 312. “This Court ‘will reverse a district
29, 2002.                                                                     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
    1
      Plaintiff-Appellee Peter Edward Ritchey has made a tradition of
dressing as Santa Claus and distributing leaflets on Fountain Square          A. STANDING
during the holiday season. Consolidation of his case with the Chabad
case was conditionally permitted by the district judge at the beginning of      Chabad has standing to bring a facial challenge against the
the hearing on the motio n for prelimina ry injunction, allowing for a        City’s ordinance. Chabad seeks to use a traditional public
response by the defendant. In its brief, Defendant-Appellant has
questioned Ritchey’s standing to challenge the ordinance. We, however,
                                                                              forum for expressive activities during the seven week period
note that in a facial challenge such as this where one party has standing,    for which the City’s ordinance prohibits all use of the type in
we need not consider the issue of the standing of other parties to the        which Chabad seeks to engage. See Congregation of
action. See, e.g., Bowsher v. Synar, 478 U.S. 714 , 721 (1986 ). Further,     Lubavitch v. City of Cincinnati, 997 F.2d 1160, 1164 (6th Cir.
we note that the district court granted Chabad’s motion for preliminary       1993) (hereinafter, “Lubavitch II”) (finding Fountain Square
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
                                                                              to be “traditional public forum”). Thus, Chabad faces an
require us to examine issues this app eal does no t otherwise require us to   imminent and concrete injury in fact, directly traceable to the
decide (i.e. whether Ritchey’s conduct is covered by the regulation;          City’s ordinance, that is redressable by a decision in its favor.
whether the narrowing construction is binding), we shall not address it
here.
No. 02-4340         Chabad, et al. v. City of Cincinnati       7    8        Chabad, et al. v. City of Cincinnati               No. 02-4340

See Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d             1.    NARROWING CONSTRUCTION
513, 524 (6th Cir. 2001).
                                                                      As an initial matter, the City submits that the district court
   The City challenges Chabad’s standing on the basis that          abused its discretion by failing to consider a memorandum
Chabad did not exhaust its administrative remedies. Without         from the City Manager as a “narrowing construction” of the
deciding whether a party would ever have to exhaust                 ordinance. The memorandum provides, in relevant part:
administrative remedies in order to bring a facial challenge to
a regulatory scheme under the free speech clause of the First           In enforcing the listed provisions, please note that the
Amendment, we note that there is no administrative appeals              City’s use of Fountain Square merely imposes a
process available to Chabad in this case. The City provides             restriction prohibiting the types of private displays or
an appeals process for the denial of a permit where the permit          events that would normally be allowed on the Square
seeker contends that its application meets the requirements of          following the issuance of a permit....All other types of
the City’s permitting scheme. See § 713-4(i) (stating that “the         expression (i.e., carrying political signs, handing out
sole issue to be decided [on appeal of the denial of the permit         leaflets) will of course be permitted on Fountain Square
to the city manager] is whether the application meets the               during this period.
requirements of this chapter [§ 713] and the city managers
rules and regulations for the use of Fountain Square”).             J.A. 506. The memorandum draws a distinction between
However, the portions of § 713 challenged in this case do not       activities on Fountain Square that require a permit and those
act as a permitting scheme at all. Rather, they constitute a flat   that do not. The distinction drawn is clear from the face of
prohibition on all use of the square of the type that requires a    the statute, and the memorandum offers no real clarification
permit during the rest of the year. Chabad did not need to          on the application of the ordinance that is not available from
appeal the denial of its permit application in an appeals           the language of § 713 itself. This is exactly how the district
process that only gives the city manager authority to decide        court considered the ordinance: as a “flat ban on all non-
the one issue upon which the parties agree, that § 713              governmental use of the Fountain Square for which one would
prohibits Chabad’s intended use.                                    normally require a permit.” Chabad of Southern Ohio v. City
                                                                    of Cincinnati, 233 F. Supp. 2d 975, 985 (S.D. Ohio 2002)
B. LIKELIHOOD OF SUCCESS ON THE MERITS                              (emphasis added). Appellant has pointed to no evidence that
                                                                    the district court took a broader view of the ordinance than
   The City of Cincinnati enacted Ordinance No. 0122-2002           that contained in the memorandum and, thus, the district court
in order to reserve for itself exclusive use of Fountain Square     did not abuse its discretion.2
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.
                                                                         2
The district court did not abuse its discretion when it                   Since we agree with the district court that the ban on speech and
concluded that the ordinance was a content-based regulation         events that normally req uire a p ermit, as described in the City Ma nager’s
of private speech that does not meet strict scrutiny.               memorandum, is unconstitutional, we need not consider whether the letter
                                                                    is binding upon the City.
No. 02-4340         Chabad, et al. v. City of Cincinnati     9    10       Chabad, et al. v. City of Cincinnati               No. 02-4340

  2.   MANNER OF SPEECH                                           incorrectly applied strict scrutiny to the ordinance. We find
                                                                  that the district court did not abuse its discretion in this way.
   The City argues that “there is no free speech right to leave
an unattended private structure on public property.”                 The level of scrutiny applied to restrictions on speech in a
Appellant’s Brief at 10. To the contrary, whether there is        traditional public forum depends on whether the regulation is
such a right depends upon the property and the government’s       content based or content neutral. See Perry Educ. Ass’n v.
regulation of that property. We have previously recognized        Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).
that the display of an object such as a menorah is expressive     Although the City’s ordinance appears content neutral on its
activity for purposes of the First Amendment. See Lubavitch       face – prohibiting all private speech that normally requires a
II, 997 F.2d at 1164 (citing Texas v. Johnson, 491 U.S. 397,      permit – the district court concluded that it was de facto
404 (1989)).                                                      content based because the City’s purpose in passing this
                                                                  ordinance was to prohibit controversial and unpopular content
   The question in this case is whether Chabad has a right to     from being expressed in the Square during the holiday season.
engage in this type of expressive conduct in Fountain Square.     The district court was not clearly erroneous in reaching this
When the property is a traditional public forum, such as          factual conclusion.
Fountain Square, “a State's right to limit protected expressive
activity is sharply circumscribed: It may impose reasonable,        The district court concluded that the present ordinance was
content-neutral time, place, and manner restrictions.” Capitol    motivated by a desire to prevent unpopular or controversial
Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761        speech, in part, because the ordinance itself makes explicit the
(1995). A manner restriction is a restriction on the manner,      City’s intent to prohibit such speech because the exclusive-
or mode, of speech allowed in a public forum. A blanket ban       control provision was designed to permit the city to ensure
on unattended structures, for example, is a manner restriction    that the winter holiday display “appeals to the widest of
that may pass constitutional muster. See id.; Congregation of     audiences.”3 Ordinance No. 0122-2002. The district court
Lubavitch v. City of Cincinnati, 923 F.2d 458, 460 (6th Cir.
1991) (hereinafter, “Lubavitch I”). The City of Cincinnati,
                                                                       3
however, does not have such a blanket ban on unattended                  The district court noted, as well, that the City has a long history of
structures. Indeed, § 713 explicitly authorizes such use of       trying to regulate speech in Fountain Square, enacting a parade of
Fountain Square with a permit forty-five weeks of the year.       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
  Thus, Chabad has a First Amendment protected right to           Cir. 199 3); Lubavitch I, 923 F.2d 458, 460 (6th Cir. 1991). In the present
leave freestanding unattended structures on Fountain Square,      matter, Chabad presented testimony that it applied for its 2001 and 2002
limited only by content-based restrictions that satisfy strict    perm its simultaneously in No vember 200 1 beca use the City’s Director of
scrutiny and reasonable, content-neutral time, place, and         Pub lic Service had advised Rabbi Kalmanson that it would be in C habad’s
manner restrictions.                                              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
  3.   CONTENT-BASED LIMITATION                                   is of limited pr oba tive value in evaluating the c urrent ordinance, not in
                                                                  force in Nove mber 2 001, the district court prop erly noted that it co uld
  The City argues on appeal that the district court incorrectly   inform its understanding of the present evidence regarding the City’s
concluded that the statute was content based and thus             purpo se and intent in enacting the ordinance. See Luba vitch II, 997 F.2d
                                                                  at 1164.
No. 02-4340             Chabad, et al. v. City of Cincinnati            11     12   Chabad, et al. v. City of Cincinnati         No. 02-4340

reasoned that “[b]y excluding from the public discourse on                     purpose in enacting the ordinance was to prevent unpopular
Fountain Square speech which would not appeal to ‘the                          and controversial speech is not clearly erroneous.
widest of audiences,’ the City wishes to eliminate speech
which might be controversial or offensive to those visiting                      The district court did not abuse its discretion when it
downtown Cincinnati.” Chabad, 233 F. Supp. 2d at 984.                          concluded – based on its factual finding regarding the City’s
                                                                               purpose – that the exclusive-control provision was content
   Although the language in the ordinance about appealing “to                  based. Distinctions between speech that is “acceptable”
the widest of audiences” might be read as merely describing                    because it appeals to “the widest audiences” and speech that
the type of speech in which the City wished to engage, the                     is too “controversial” or unpopular to appeal to a wide
district court’s conclusion that this language indicates a desire              audience are distinctions based on content. See United Food
to eliminate controversial or offensive speech is amply                        & Commercial Workers’ Union, Local 1099 v. Southwest
supported in the record.4 For example, the ordinance explains                  Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998);
that appealing “to the widest of audiences” is why it is                       Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 96
exerting exclusive control, not why it is speaking in the first                (1972).
place. See Ordinance No. 0122-2002 (“With exclusive
control over its content and design, the City will be able to                    Content-based restrictions on speech in a public forum must
ensure that the winter display...appeals to the widest of                      be narrowly tailored to achieve a compelling government
audiences....”). This suggests that the exclusive-use provision                interest. Perry Educ. Ass’n, 460 U.S. at 45. The City,
is at least as much about excluding other messages as it is                    focusing its arguments on whether or not strict scrutiny is the
about giving the City the opportunity to deliver its own.                      inappropriate standard of review in this matter, has not argued
Thus, the district court’s factual determination that the City’s               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.
     The Court, of course, evaluates each ordinance on its own merits and      C. IRREPARABLE HARM TO PLAINTIFF
would not find against the City merely because of its prior bad acts. An
otherwise constitutional regulation canno t be unconstitutional sim ply          Defendant-Appellant suggests that Plaintiffs-Appellees’
because of a ba d history on the part of a government entity. Non etheless,
in a case such as this, the City’s past actions regarding the same forum,      motion for a preliminary injunction could have been denied
parties, and conduct can inform the inquiry into the City’s purpose            by the district court solely on “equitable” grounds and urges
regarding a new ordinance and the meaning of the evidence available            us reverse the district court’s decision on these grounds alone.
regarding the new ordinance.                                                   We understand this to be an attack on the district court’s
    4                                                                          decision that the movant would suffer irreparable injury
      If the ordinance were read merely to indicate the type of speech the     without the injunction.
City intended to present when it acted as a speaker in the squ are, it would
not matter whether the City intended its speech to appeal to a wide
audience or to be uncontroversial because “whe n the Sta te is the speaker,
                                                                                 Specifically, the City argues that Chabad’s need for a
it may make content based choices.” Rosenberger v. Rector & Visitors of        preliminary injunction was contrived, arising only as a result
Univ. of Va., 515 U.S. 819, 833 (1995). All government speech                  of Appellees’ own delay in filing their complaint and motion
presu mab ly has some content, and we do not wish to imply that the            for a preliminary injunction. Chabad learned that its
governm ent is engaged in co ntent discrimination every time it speaks.
No. 02-4340         Chabad, et al. v. City of Cincinnati      13    14   Chabad, et al. v. City of Cincinnati      No. 02-4340

application for a permit was denied six months prior to the         granted Chabad’s motion for a preliminary injunction and
date Chabad actually filed this lawsuit and, in the meantime,       enjoined the City from enforcing CMC § 713. For the
“apparently attempted to lobby individual City officials who        reasons stated above, we AFFIRM the decision of the district
did not possess legal authority to override the new                 court.
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
