Chabad v. Cincinnati ( 2004 )

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