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

Document 88

Filed 09/26/2008

Page 7 of 14

First, OFNB Plaintiffs assert that, by holding these food sharing events, they intend to

convey the message that society can and should provide food for all of its members, regardless of

wealth. The City argues that the message the OFNB Plaintiffs intend to convey is not

particularized because each of the witnesses described their intended message in slightly different

terms. However, these minor differences do not undercut the fact that all the members of OFNB

described the same basic substantive message. Therefore, the Plaintiffs have sufficiently

established the intent prong of the Johnson test.

Next, the City argues that Plaintiffs’ message is not likely to be understood by those who

view their conduct. This argument, however, is undercut by the testimony of Orlando’s Mayor,

Buddy Dyer, who stated that he believed that OFNB provided food to the homeless only to convey

their political message – not necessarily to help the homeless. TR at 230-31. Furthermore, in a

video presented by Plaintiffs, an Orlando Police Officer noted that he realized that the feeding was

being held mainly for political purposes. PL. EX. 5. Finally, the testimony at trial established that

the likelihood of the OFNB Plaintiffs’ message being received is enhanced by their use of signs,

T-shirts and buttons. TR at 190-91. Therefore, the Court finds that the OFNB Plaintiffs are

conveying a message that is likely to be, and is in fact being, understood by the public and that the

group feedings held by OFNB qualify as expressive conduct under the First Amendment.

Next, the Court turns to the issue of whether the Ordinance is constitutional.

In evaluating the constitutionality of an ordinance restraining or regulating speech, “we first inquire whether the Ordinance is content-neutral.” Burk v. Augusta-Richmond County, 365 F.3d 1247, 1251 (11th Cir. 2005); see also One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1286 (11th Cir. 1999). . . . The Supreme Court has articulated and applied various standards for determining whether a law is content based or content neutral. “As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.” Turner,

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