Cincinnati officials might not like the message, but they can't kick the messenger out of Fountain Square — not even if it's the Ku Klux Klan.

        Despite the use of racist, derogatory and hateful invective in rallies past, city lawyers said Monday there is no legal reason to deny the Klan's permit to erect its Christmas cross downtown.

        They also said enforcement of a city ordinance that prohibits masks or hoods, such as those worn by the white supremacists, would be unconstitutional.

        “To say it is constitutionally protected, that means you can't regulate it,” said Deputy City Solicitor Robert Johnstone.

        City Council last week asked whether there was any way the Klan's permit could be rejected because members incited “fighting words” during a rally last January.

        The executive director of the Cincinnati Human Relations Commission, Cecil Thomas, said that type of behavior isn't protected under the First Amendment right of free speech or under city ordinances.

        And he said Monday that city solicitors aren't pushing the issue far enough. After losing several cases against the Klan in the 1990s, Mr. Thomas said, the city is unwilling to test a 1995 U.S. Court of Appeals ruling that defined fighting words.

        But Mr. Johnstone said a review of video tape from the January rally — during which Klan members shouted slurs and held a mock lynching — is not actionable.

        The Rev. Jeffery Berry, KKK national imperial wizard, said last week the Christmas display is a peaceful one and is not associated with the rally.

        After local ministers snatched up all of the available permits last year — keeping the Klan off the square during the holidays — the Rev. Mr. Berry said he made sure he was first in line this year.

        He said the Klan is a religious group — and if officials try to stop the display, he will file a federal lawsuit against the city.

        For eight years, the Klan has erected its cross on Fountain Square all but two seasons — last year and in 1997, when the member responsible for filing the permit request was sentenced to 55 years in prison for child rape.

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