On Wednesday Cincinnati City Council members voted 9-0 to try an end run around the First Amendment to keep racists off of Fountain Square. They might as well have hung a sign from the outstretched arms of the Genius of the Waters saying “KLAN CROSS GOES HERE!”

        No matter how many times council tries to prevent it; no matter how much the rest of us might wish it were not so; the fact remains that the Klan has as much right to be on the square as anyone else. Every time council tries to keep the Klan out a suit gets filed, the city loses and the cross goes up.

        Cincinnati has taken two expensive trips to federal court on this issue already. The first time it was to keep a Jewish group from erecting a menorah on the square during December. The court ruled that the square is a public forum, open to all. As soon as that happened the Klan showed up saying if the Jews got a display they wanted one too.

        A few years later Cincinnati tried to ban the Klan again, with the same result. You can hate what a group has to say, but you can't prevent them from saying it. The attempts to keep the Klansmen out simply strengthened their resolve and threatened to make the KKK cross a Cincinnati Christmas tradition. The city tried so many times and so many ways to keep the Klan off the square that its lawyers eventually warned council members that they risked being sued personally if they tried it again.

        Then some church leaders got smart and early one November they applied for all of the available permits for December displays on the square. Before the Klansmen knew it they had been closed out for the holidays.

        That worked last year, but there is always the chance that the Klan might jump to the head of the line for a permit this year. And despite the city's sometimes frantic attempts to legislate a ban, there are still some people who believe that members of council have not done enough to keep the Klan away.

        Which brings us to Wednesday's action. In a plan hatched by the city's lawyers, council reserved the square for “exclusive government use” from mid-November to mid-January. That means the city can put up its Christmas tree, lights and skating rink, but there will be no private displays, no menorah, no “Wall of Tolerance” and no Klan.

        This will pass court muster, the lawyers said, because it's not really about the Klan. What it really is, according to Assistant Solicitor Bob Johnstone, is a move to help downtown business by keeping the square uncluttered during the busiest season of the year.

        Yeah, right.

        “Everybody knows this is about the Klan,” said Scott Greenwood, attorney for the American Civil Liberties Union, which has represented the Klan in the previous cases. “To portray this as some kind of a management tool is a transparent attempt to get around the First Amendment ... The city might as well hand-deliver an engraved invitation to the Klan.”

        The ACLU may not even wait for the Klan to ask for representation. Mr. Greenwood said he is looking into whether council's Wednesday vote is contempt of court in connection with the last order to let the Klan onto the square.

        You have to feel sorry for city council. They know they can't win a case in court to keep the Klan off the square. But the Black United Front and other protesters have actually accused the city of being in collusion with the Klan because the city has obeyed past court orders.

        That is absurd and unfair. The Klan is an evil, un-American organization and there isn't a member of council who wouldn't love to short-sheet its Christmas display.

        From a legal standpoint, council members would have been better off to have done nothing. The local Klan is a small, disorganized and not very bright bunch. They would be a joke if their message of racial intolerance weren't so dangerous. If left alone, they might have forgotten to get their Christmas permit until it was too late.

        Legally, members of council would have been better off to have done nothing. Politically they couldn't do that, so instead they have thrown down a challenge to the Klan.

        They better start thinking about what they will do when it gets picked up.

        Contact David Wells at 768-8310; fax: 768-8610; e-mail: dwells@enquirer.com. Cincinnati.Com keyword: Wells.

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