Fountain Square, A Traditional Public Forum?

I am slightly obsessed with the nature of public space so I find the whole Fountain Square abortion exhibit fascinating. Not because of the content, but because of the changing expectations of public space. The comment in the enquirer article by Fountain Square Managing Director Bill Donabedian sums this up pretty well. He says, “I think people would agree the square prior to renovation was about political space,” he said. “(Today) they see it as entertainment venue.”

This, for me, is the crux of the issue. What is the purpose of public space in the context of today’s cities? Are places like the renovated Fountain Square, and the renovation is important here, meant to be “traditional public forums.”

In determining the rights and privileges we have in public space the courts have established three categories of public spaces. The most protected of these is the “traditional public forum.”

In a 1939 case, Hague v. Committee for Industrial Organization, the Supreme court ruled that,

Streets and parks…have immemoriably been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public issues. Such use has, from ancient times, been part of the privileges, immunities, and liberties of citizens.

With regards to free speech in a traditional public forum, the state may not restrict speech based on content unless it can show that its regulation is necessary to serve a compelling state interest and is specifically tailored to achieve that interest.

In terms of Fountain Square specifically, the courts have ruled that,

It is well established that Fountain Square is a traditional public forum (Congregation Lubavitch v. City of Cincinnati , 997 F.2d 1160, 1161 (6th Cir. 1993). Therefore, the City’s regulation of speech on Fountain Square is subject to the highest level of scrutiny. More here.

Given that this ruling applied to the old Fountain Square should it now fall under a lesser-scrutinized classification? There is more information about the distinctions between the classifications here.

Would this be in the contemporary public interest, or a legitimate state interest? Is attracting tourist, families, the managerial class, and new residents more important than political dialog?

Could an argument be constructed that it is in the state’s interest to reclassify Fountain Square, or that there is a legitimate reason to be more selective about the events that take place there?

This is after all what has been happening, not just on Fountain Square but in public space in general. Bill’s comment illustrates that the general public thinks differently about Fountain Square and the fact is that his position is to manage this “traditional public forum”, which “provides overall leadership, direction, and focus to deliver the vision for the revitalized Fountain Square.

Maybe it can be both, maybe politics is the new entertainment. Aftter all Obama is the world’s biggest celebrity.

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33 Comments

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33 responses to “Fountain Square, A Traditional Public Forum?

  1. “In determining the rights and privileges we have in public space the courts have established three categories of public spaces. The most protected of these is the “traditional public forum.””

    …what are the other two categories?

  2. justforview

    The link above was incorrect, they are available here.

    They include,
    Limited or designated public forums– defined as “public property which the state has opened for use by the public as a place for expressive activity” and are treated substantially the same as traditional public forums.

    and,

    Non-public forums– Examples include street-light posts, prisons, military bases, polling places, a school district’s internal mail system and airport terminals.

  3. justforview

    Another article related to free speech on Fountain Square.

    In response to the case of the cross the city banned private unattended structural displays over the holiday season. This was also ruled unconstitutional.

    Still, some reasonable restrictions (referred to as time, place and manner restrictions) may be necessary for legitimate reasons such as safety and public access.

    Time, place manner, as opposed to the content based regulations, have a lower level of scrutiny,

    Generally, the law must serve an important objective (unrelated to speech), that the law is narrowly tailored, and that there remain ample alternative means of communication.

    Q. Couldn’t it be argued that the current first-come, first-serve basis does not allow for “ample alternative means of communication,” is not unrelated to speech, or related to the safety or public access?

  4. justforview

    More on limited public forum. 819 F.2d 289)

    “A limited public forum will be found when government property not normally open to the general public is opened temporarily or for a special purpose. In such a forum, there exists a need to confine expressive activity to that which is compatible with the intended use(s) of the property. However, “[a]lthough a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum.”

  5. I’m unfamiliar with the distinctions and protection you’ve described, but it seems that FS has become a fairly censored, family-friendly entertainment venue. Have there been other events like this fetus exhibit since the renovation? Does broadcasting Obama’s speech count?

    I’m surprised that this group was allowed to tackle their issue in the manner in which they did. I also find it a bit odd that such a complex, adult issue was presented in this setting, using these images. That is, I understand that it’s really all about “shock and awe,” but it just does not seem like an effective way to have a honest dialogue with the people who frequent FS, just a way to try to disturb people. Isn’t dialogue in a public forum the thing that’s supposed to be protected?

  6. justforview

    There have been other events, but they have received less attention. The enquirer article described a PETA event were they”protested eating meat by lying naked on large trays, covered with clear plastic, mimicking typical meat packaging to demonstrate that all animals are made of flesh, blood and bone.”

    It isn’t dialogue that is protected, it’s speech.

    I have two theories as to why this happened.

    1. The City has lost so many, at least five, court cases concerning freedom of speech at Fountain Square. The costly legal battles are tricky because the burden is on the city to show that ordinances are content neutral, specifically tailored and allow for other channels of communication.

    2. Some upper level management is either supportive, or thought that this would be publicity for either the issues or the square.

    With regards to the Obama, and McCain, speeches being broadcast there was an interesting case about a political rally during the Regan-Bush campaign in ’84. Basically people were not allowed to carry in signs that were opposing issues or the campaign, but everyone who entered was given a pro campaign sign.

    Plaintiffs filed a suit saying that there freedom of speech was restricted and the court gave no summary judgment. They did raise the question of whether the square was a traditional public forum, or if in holding the event the City determined it a limited public forum.

  7. It isn’t dialogue that is protected, it’s speech.

    To me, calling FS a “public forum” implies the exchange of ideas, e.g. a dialogue. So, that seems to include the freedom of speech as well as the exchange of free speech. Again, I’m surprised that the fetus photo tactics were allowed, not that the message was allowed. But, I guess I’m conflating my layperson’s, common-sensical understanding with the letter of the law.

    How is this different [or is it different?] from other comparable public spaces in other cities?

  8. jkh

    To say that politics is the new entertainment, and to suggest that the public forum of FS should only be used for polite discourse (no nasty pictures) strikes me as extraordinarily out of touch.

    This case not withstanding, there are many people who call for systemic change over issues that touch their lives concretely, as a matter of justice. Their ability and willingness to stand up in public forums have instigated many changes that we now benefit from. When these causes are brought to a public forum the intention is far from entertainment. It is to bring awareness or urgency to society and its powers to effect change.

    Discourse is important, but the public forum issue gets at the very heart of the way we experience and participate in democracy. Now I realize that most of us in Cincinnati are somewhat domesticated and unwilling to speak truth to power. But it does happen occasionally, and the new FS should absolutely be available for this fundamental use.

    Of all the public spaces in our region, this one is perhaps the most critical for this function. In our culture, forum is a fundamental function of public space. And this one is the most central. Yes, the new FS is prettier and more entertaining than the old FS. A wedding cake is both prettier and more entertaining than a regular cake. But in the end, you eat it.

  9. If that’s a response to my comment, I think I’ve made my ignorance of the letter of the law clear and, based on how tightly controlled programming on FS seems to be, I was just surprised that these images [not the message] would be allowed. My response reflected expectation management based on my experience, but I agree with you that it is critical to have an open public forum for dialogue about pressing issues, and FS is the logical site for that kind of activity.

  10. justforview

    My suggestion that politics is the new entertainment was rhetorical. I am not taking any position here, just pointing out that the nature of the square, and by extension the forum, is contested in the context of contemporary culture.

    VL asked if there this is typical of public spaces elsewhere. I can’t say with any certainty, but I would guess that traditional public forums are becoming increasingly rare, and therefore contested when those few who are willing to “participate” make an attempt.

  11. I had my nieces in town and we steered clear of the square Friday. I’m all for free speech but they seemed to be intentionally going over the top for provocation.
    But of course its my right to stay the heck away so I used it!
    I do love the square for shared experiences, the Maupin funeral, Obama and McCain for instance.

  12. I’m sorry I missed this discussion. I found
    Some good clarification in the comments.

    I am wondering if FS is legally different than other squares and parks in the city such as Hyde Ark Square or Sawyer Point or Piatt Park. How diifferent is the allowed speech dofferent here than that allowed on any sidewalk?

  13. justforview

    I don’t think there are differences, other than unique time, place, and manner restrictions. My guess is that the same protections are afforded in each of these places, including sidewalks. It’s just that FS, being a symbolic center, has seen more conflict over regulation.

    In this specific case the time, place, manner restrictions of sidewalks probably wouldn’t permit the scale of the display.

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