Agenda - Planning Commission - 12/06/2018

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c Zoning Bulletin October 25, 2018 I Volume 12 I Issue 20 FLFNB's outdoor food sharing was expressive conduct protected by the First Amendment. In so holding, the court noted that the First Amendment guarantees "all people [ ] the right to engage not only in 'pure speech,' but `expressive conduct' as well." The court explained that "acts that qualify as signs with expressive meaning qualify as speech within the meaning of the Constitution." Whether conduct is "expressive" depends, explained the court, on "whether the reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message." The context of an event and its surrounding circumstances are critical in a reasonable person's interpretation of conduct, emphasized the court. Here, the court found that the reasonable person would interpret FLFNB's conduct as some sort of message. The court noted the surround- ing circumstances that would lead the reasonable observer to view the FLFNB's conduct as conveying some sort of message: (1) FLFNB set up tables and banners and distributed literature at its events, thus distinguish- ing its sharing of food with the public from friends simply eating together at the park; (2) FLFNB's food sharing events were open to everyone, thus having "social implications"; (3) FLFNB held its food sharing events in a public park near City government buildings, which the court found to be an "important factor in the `factual context and environment' " to be considered; (4) FLFNB fed the homeless and the record demonstrated that the treatment of the City's homeless population was an issue of concern in the community; and (5) FLFNB was using the sharing of food as a means for conveying its message, and the court found the significance of sharing of meals with others "dates back millennia" to Jesus, the Pilgrims, and the establishment of Thanksgiving as a national holiday. Accordingly, the court determined that FLFNB's food sharing events were clearly intended to "express[ ] an idea through activity," and, "[d]ue to the context surrounding them," "the reasonable observer would interpret its food sharing events as conveying some sort of message." Thus, looking at FLFNB's activity "combined with the factual context and environment in which it was undertaken," the court concluded that FLFNB's food shar- ing was a form of First Amendment protected expression. The Eleventh Circuit declined to address whether the Ordinance and re- lated park rule violated the First Amendment, leaving those issues to be taken up by the district court on remand. See also: Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 188 Ed. Law Rep. 620 (Il th Cir. 2004). See also: Spence v. State of Wash., 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974). © 2018 Thomson Reuters