CHABAD OF SOUTHERN OHIO ET AL.
v.
CITY OF CINCINNATI
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A Cincinnati ordinance reserved exclusive use of Fountain Square, a historic public forum, to the city for seven weeks, preventing private religious and other groups from using the space. Justice Stevens vacated the Sixth Circuit's stay of a district court injunction against enforcement of the ordinance, holding that under First Amendment principles established in Capitol Square Review and Advisory Board v. Pinette, the city could not exclude private speakers from a traditional public forum even during a period of high use.
[1] A city ordinance that reserves the exclusive use of a public square for the city during a specific period may be enjoined if it is interpreted as significantly broader th…
[2] A public square's historic character as a public forum is relevant when considering the constitutionality of an ordinance that restricts its use.
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Justice Stevens, Circuit Justice.
The Court of Appeals for the Sixth Circuit has entered a stay of a District Court order enjoining enforcement of a city of Cincinnati ordinance, and plaintiffs have filed a motion with me as Circuit Justice seeking an order vacating that stay. As did the District Court, the Court of Appeals states that the ordinance in question “reserves the exclusive use of Fountain Square to the City” for the 7-week period beginning today. No. 02-4340 (CA6, Nov. 27, 2002), p.
1. Though the city has filed a narrowing interpretation of this ordinance with me, for the purposes of the present motion I accept the construction of the ordinance by the courts below (who also had the benefit of this narrowing interpretation) even if I might have arrived at a different conclusion without such guidance. See Bishop v. Wood, 426 U. S. 341, 345-346 (1976).
Under the District Court’s reading, 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. Given the square’s historic character as a public forum, under the reasoning in this Court’s decision in Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 (1995), I think the District Court correctly enjoined the city from enforcing “those portions” of the ordinance “which give the City exclusive use of Fountain Square” for the next seven weeks. No. C-1-02-840 (SD Ohio, Nov. 27, 2002), p.
21. It follows, I believe, that the Court of Appeals’ stay should be vacated.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bishop v. Wood, 426 U.S. 341 (U.S. 1976)
- Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (U.S. 1995)