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Free speech is messy, but restricting it is messier
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

Controlling free speech can be a legal quagmire – just ask the city of Cincinnati.

This week the city lost a round in its long struggle to control holiday displays that community groups erect in Fountain Square – the symbolic center of downtown Cincinnati. Thanks to an order by Supreme Court Justice John Paul Stevens, a Jewish organization can now erect a menorah in the square for the remainder of the Hanukkah celebration.

But the fight is far from over. Contrary to widespread news reports, this was not a “Supreme Court ruling.” Justice Stevens (acting as circuit justice for that region of the country) allowed the display to go up – at least for this year. The court case is still on appeal.

At issue is a municipal ordinance that effectively bans all private displays in Fountain Square during the holiday season. The city passed the law after losing court battles in the 1990s to keep the Ku Klux Klan from erecting a cross in the square during the Christmas season.

Here’s where the story gets a bit complicated. Last month, U.S. District Judge Susan Dlott ruled that the ordinance violates the First Amendment by giving the city “exclusive use of Fountain Square” during the holiday season. She ordered the city to allow the menorah.

Within hours, the U.S. Court of Appeals for the 6th Circuit granted an emergency stay of Judge Dlott’s order. The menorah was out. But two days later Justice Stevens lifted the stay – and the menorah was back. Three courts in three days.

Beyond the menorah display, the larger issue is government power to control free expression on public land. As Justice Stevens noted, Fountain Square has long been a “public forum” for a broad range of activities and messages. As the city discovered in the fight to exclude the Klan, the First Amendment protects all free expression – including offensive speech.

Cincinnati tried to cure the Klan problem by passing an ordinance banning all holiday displays by private organizations. But in Judge Dlott’s reading, that law offends the First Amendment by turning Fountain Square into a space where only the government’s message is heard.

Could Cincinnati officials accomplish the same goal by crafting a more narrowly tailored law? Maybe. Justice Stevens hinted as much when he wrote that “the ordinance is significantly broader than a reservation of the exclusive right to erect unattended structures in the square during this period of high use, which I assume the city could have reserved to itself.”

But it isn’t a sure bet that Judge Dlott (or, more important, five members of the Supreme Court) would agree that the government can declare itself the only messenger through “unattended structures” during the holiday season – or at any other time – in a public forum such as Fountain Square. Of course, most judges will agree that reasonable restrictions (time, place and manner) may be necessary for legitimate reasons such as safety and public access. But a wholesale ban on all “unattended structures” by private groups during the holiday season may still not pass constitutional muster.

If you favor robust free speech, the best solution (and most controversial) is to let Fountain Square be a true First Amendment space – a public square where any and all groups can put up displays in December or at any other time of year.

Is it messy? Sure, just walk past the White House and look at the often outrageous signs and displays in Lafayette Park across the street. A free and open public square will always be somewhat crowded, a bit loud, and unsightly.

As beautiful and commanding as the White House is, I’m far more inspired by the presence of those crude, hand-painted signs protesting what the White House is doing. A messy public square is a vital sign of a truly free society.


Supreme Court turns away dispute over menorah in city plaza

On Nov. 29, Justice Stevens vacated lower court's order that would have prevented Hanukkah display in Cincinnati's Fountain Square. 12.17.02

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