By Dan Horn
The Cincinnati Enquirer
A federal judge will decide this week whether to throw out a new Cincinnati law that bans holiday displays on Fountain Square.
U.S. District Judge Susan Dlott heard arguments Monday from critics who want the law declared unconstitutional because it allows "government speech" while barring the speech of private citizens.
City lawyers argued that the law targets clutter on the square - not free speech - and is intended to help the city keep order downtown during the busy holiday season.
If the judge declares the law unconstitutional, the city will once again be required to issue permits to private organizations that wish to erect displays.
The dispute is the latest in a long line of holiday legal battles over the use of Fountain Square, which has been the focal point of controversy since the Ku Klux Klan first tried to erect a cross on the square in the early 1990s.
The city has attempted to restrict holiday displays several times over the years, but the courts have repeatedly declared those efforts unconstitutional.
Opponents of the new law say the latest attempt is also flawed.
"This ordinance allows only government propaganda, like the old Pravda in the Soviet Union," said lawyer Scott Greenwood, referring to the old Communist Party newspaper.
Mr. Greenwood represents Homeless Hotline of Greater Cincinnati, which wants to send a volunteer dressed as Santa Claus onto the square next month to pass out fund-raising pamphlets.
The homeless group has joined in a lawsuit filed earlier this month by Chabad of Southern Ohio, a nonprofit Jewish organization that has for years erected a large menorah on the square during Hanukkah. The Jewish holiday begins Friday at sundown.
Both groups say the city should return to the old system of issuing a limited number of permits for holiday displays on a first-come, first-served basis.
"This is the town square. It's the forum everybody uses," said Peter Ritchy, director of the Homeless Hotline. "It's the center point of advocacy when you want to speak to the community."
The new law, however, gives the government exclusive rights to the square from the last two weeks of November through the first week of January.
"The city has the right and authority to present a seasonal holiday display unencumbered by private unattended structures," said Richard Ganulin, an assistant city solicitor. "There are no constitutional issues."
But Marc Mezibov, the lawyer for Chabad, said the city law goes beyond holiday displays to include bans on public meetings, protests or rallies. And that, he said, is clearly unconstitutional.
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