Showtime for the First Amendment

I’ve had two memorable personal experiences in the theory and practice of free speech at Fountain Square, so its future as a forum for dissent is of great interest to me.

In 1984 President Ronald Reagan spoke on the square during his re-election campaign. Charter buses ringed the square, and Republican activists confiscated protest signs at the one entrance through which all guests had to pass. I managed to sneak onto the square a sign saying, “Dump Reagan.” But when I held it aloft for the Gipper to see, a man punched me in the jaw and tore up my sign. A Cincinnati Police officer was standing nearby; when I told him what had happened, he ignored me, making no response at all.

In 2003 I joined with Michael McCleese in planning to block traffic in front of Fountain Square to protest the U.S. invasion of Iraq. Three other people unexpectedly joined us in being arrested. I’m proud to say that, with the help of dozens of fellow protesters, we nicely tied up traffic on Fifth Street during evening rush hour.

Now that the city has put the Cincinnati Center City Development Corp. (3CDC) in charge of the refurbished Fountain Square, how will protests be handled? During a recent meeting with CityBeat staffers, 3CDC officials tried to assuage concerns that the new entertainment focus will inhibit use of the square for protests.

“My board isn’t trying to restrict protests on the square,” said 3CDC President Stephen Leeper.

But I’m not convinced. Leeper attempted a joke about the kind of art that will be welcome on the square.

“No Mapplethorpe,” he said. “I’m kidding — don’t print that.”

But joking aside, Bill Donabedian, the square’s new manager, is determined to transform it into an entertainment venue and “selling point” for downtown.

“Fountain Square has to be a place where people just have to go because they’re never sure what’s going to be going on — but it will be a lot of fun, a lot of excitement,” he said. “My job is to give people one reason to come downtown and, once they experience that entertainment and that fun, they’ll realize there are other things to do downtown.”

Donabedian even suggested that, with enough entertainment, people might feel less need to organize protests at all.

“I have a feeling that, if you fill the space with events and entertainment, there will be less protests,” he said. “Part of it is because people have been unhappy.”

Yes, well, I’d be happier if conservative Republican presidents were sent elsewhere to give their speeches. But arguing that more entertainment is the way to mollify dissent isn’t just supercilious; it also shows ignorance of the law.

It just four years ago that U.S. Supreme Court Justice John Paul Stevens weighed in on the question of the proper uses of Fountain Square. In tossing out a stay issued by the U.S. Sixth Circuit Court of Appeals, Stevens dispensed with the city’s efforts to ban Ku Klux Klan crosses, Jewish menorahs and other symbols from the square between Thanksgiving and New Year’s day.

“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,” Stevens wrote.

That historical character won’t change just because 3CDC wants to turn the square into an entertainment venue. Leeper and Donabedian said that the new, improved square will likely have a section where protests can occur. But Leeper hinted at restrictions that are almost sure to lead to litigation.

“If there’s an event there, (protests) can’t interfere with the event,” he said.

The larger question, of course, is whether the trade-off is sound public policy: downsizing a public forum to accommodate a bigger show.

— Gregory Flannery

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2 Comments on “Showtime for the First Amendment”

  1. Michael Says:

    It’s no surprise that Donabedian wants the uses of Fountain Square to be exclusively helpful to Cincinnati government and pro-big-business. If he were trying to make Fountain Square more useful for other things, he wouldn’t be doing his job. But at the same time, we have inalienable rights that, despite his interests, the city cannot violate.

    Of course the financial interests involved would love to create a public space where no dissent exists. But no government has the right to enforce that.

    The best antidote for anti-speech thuggery, like what you mentioned in 1984, is videocameras. The best antidote for “free-speech zones” is non-violent resistance. God bless our constitution.

  2. Fountain Square manager Bill Donabedian and 3CDC should fully implement the U.S. Supreme Court ruling that Fountain Square be a public forum into the square’s reconstruction plans in equal consideration with entertainment plans. Neglecting the Court’s decision would not only be grave public policy, but a punishing business expense.

    Restricting Fountain Square’s access as a public forum may become cause for civil action with the U.S. Supreme Court ruling that 3CDC must remove the restrictions for public access, so rack up legal expenses. Next, weigh in the new reconstruction costs to meet the Court’s requirements for public access. Then, consider the loss of potential revenue for Fountain Square and downtown businesses projected to benefit from remodeling from further reconstruction to grant public access. What does this equal? A total loss of money, time and the precious entertainment Cincinnati is sincerely anxious to enjoy.

    To neglect the Court’s ruling, such as establishing a little corner on Fountain Square for protests and public forums, would be similar to a school erecting the Ten Commandments in a its lobby only for the state’s supreme court to rule the proposal unconstitutional under the First Amendment – so the school builds the shrine in the school parking lot.

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