By Dan Horn
and Gregory Korte
The Cincinnati Enquirer

Cincinnati officials won a rare legal victory Wednesday when an appeals court ruled that the city could continue to ban private holiday displays on Fountain Square, at least for this holiday season.

The decision by the U.S. Sixth Circuit Court of Appeals came a few hours after U.S. District Judge Susan Dlott declared the city's ban unconstitutional.

The appeals court did not reverse Judge Dlott's decision, but it did stop enforcement of her order until the case can be considered on appeal.

The Sixth Circuit's decision means individuals and private groups that had hoped to install displays on the square this year will most likely be barred from doing so.

"Fountain Square is closed to the public," said Marc Mezibov, a lawyer for a Jewish organization that had planned to erect a 10-foot-high menorah on the square. "Cincinnati has been put into a deep freeze as far as free expression is concerned."

Mr. Mezibov, who represents Chabad of Southern Ohio, said it would likely be months or longer before the Sixth Circuit hears arguments in the case and makes a decision.

City officials had vowed earlier in the day to fight Judge Dlott's decision. "I get frustrated when federal judges run the city," Mayor Charlie Luken complained.

Mr. Luken and city attorneys have argued that the ban on private displays is a reasonable, legal way to control clutter on the square during the busiest time of year.

In her 20-page decision, however, the judge declared the law an "offensive" violation of the rights of citizens to freely express themselves.

She said the ban transforms the most public place in Cincinnati into a zone controlled exclusively by the government.

"The city has attempted to monopolize the most important forum in Cincinnati during the time of year when it is most visited," Judge Dlott said in her 20-page decision. "The regulation ... is a most outrageous intrusion on the rights guaranteed by the First Amendment."

The decision appeared to clear the way for Chabad, a Jewish charitable organization, to erect a 10-foot-high menorah on the square.

The appeals court decision came as a surprise because the city has lost every legal battle over holiday displays on the square since the early 1990s, when a federal court ruled that the Ku Klux Klan had a right to erect a cross on the square.

Mayor Luken and other city officials have said they have a right to regulate the use of the square, especially when groups install "physical unattended structures" that could interfere with the city's own holiday display.

"It is distressing to me that the city's legitimate, good-faith attempts to ensure ways citizens can enjoy their public spaces are constantly interfered with by the courts," Mr. Luken said early Wednesday.

In her ruling, however, Judge Dlott said the city made a mistake when it abandoned an earlier policy of issuing permits on a first-come, first-served basis to private groups that want to use the square.

The appeals court decision to stay Judge Dlott's order does not necessarily mean the court will ultimately reverse her decision.

But for practical purposes, Mr. Mezibov said, the decision makes it impossible for anyone but the city to put a display on Fountain Square this holiday season.

E-mail dhorn@enquirer.com and gkorte@enquirer.com