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MEMORANDUM OPINION AND ORDER - page 8 / 14

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

Document 88

Filed 09/26/2008

Page 8 of 14

512 U.S. at 643. On the other hand, a content-neutral ordinance is one that “places no restrictions on ... either a particular viewpoint or any subject matter that may be discussed.” Hill v. Colorado, 530 U.S. 703, 723, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000); see also Burk, 365 F.3d at 1254 (A content-neutral ordinance “applies equally to all, and not just to those with a particular message or subject matter in mind.”).

Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1258-59 (11th Cir. 2005).

On its face, the Ordinance applies equally to all large groups who share food in downtown

parks, regardless of whether the groups are engaging in expressive conduct. While the Ordinance

clearly appears to have been passed with the intent of limiting, or even eliminating, the expressive

conduct of OFNB at Lake Eola Park, political motives are not necessarily unconstitutional.

Moreover, there is no evidence that the City adopted the Ordinance because it disagrees with

OFNB’s message. In fact, the testimony of Mayor Dyer established that the City has made

commendable efforts to provide food and social services to Orlando’s homeless and hungry

population. Accordingly, the Court finds that the Ordinance is content-neutral and must now

determine whether the Ordinance is adequately supported by an important governmental interest.

[The Supreme] Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

United States v. O'Brien, 391 U.S. 367, 376-77 (1968) (internal footnotes omitted).

The Ordinance clearly affects OFNB’s effort to convey its political message. Thus, the

question becomes whether the Ordinance furthers a substantial governmental interest and whether

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