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Case 6:06-cv-01583-GAP-KRS

Document 88

Filed 09/26/2008

Page 6 of 14

potable water and restrooms.9 TR at 32. Langford Park is also located adjacent to public

transportation. TR at 32-33. The location and amenities offered by Langford Park make it ideal

for the conduct of Nichols’ services. Although there have been no credible complaints about

Nichols’ use of Langford Park, in order to comply with the Ordinance, Nichols will either have to

limit his services to twice per year, rotate them to other parks within the GDPD, or move them to a

park outside of the GDPD.10

  • IV.

    Legal Analysis

    • A.

      Count IV: Free Speech

The analysis of this claim begins with a determination of whether OFNB’s food sharing

events are protected as “expressive conduct” under the First Amendment.

In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.

Texas v. Johnson, 491 U.S. 397, 404 (1989) (internal quotation marks omitted). “[I]t is the

obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the

First Amendment even applies.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 n.5

(1984).

9Langford Park is a heavily-wooded, relatively isolated park located to the east of downtown Orlando.

10The City suggests another alternative: that Plaintiffs hold their services at Sylvia Lane, which is located within the same area as the GDPD, but is not a park. Sylvia Lane is a former parking lot, under an expressway, enclosed by a chain link fence with barbed wire at the top and offers no amenities except tables and portable toilets. See PL. EX. 4. This alternative is entirely unacceptable to Plaintiffs, and to this Court as well.

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    6-

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