Feeding the hungry may be an expression of free speech, but cities can still put 'reasonable' restrictions on it, ruled the 11th Circuit Court of Appeals in a unanimous decision.
Stephen M. Dowell / Orlando Sentinel / AP / File
In a decision announced Tuesday, a federal appeals court ruled against the group, Orlando Food Not Bombs, and gave a green light to city officials to enforce an ordinance restricting weekly feeding of the homeless in downtown parks.
“The city is in a far better position than this court to determine how best to manage the burden that large group feedings place on neighborhoods in the city,” Circuit Judge William Pryor wrote for the unanimous decision of the 11th US Circuit Court of Appeals in Atlanta.
In a 15-page decision, the court said it was assuming, without deciding, that feeding the homeless in a public park was a form of expressive conduct entitled to some level of protection under the First Amendment.
But the court went on to decide that the city’s ordinance was a reasonable time, place, and manner restriction on the free speech rights of Orlando Food Not Bombs.
“The ordinance as applied to the feedings of homeless persons by Orlando Food Not Bombs does not violate the free speech clause of the First Amendment,” Pryor wrote.
The action reverses a federal judge’s injunction that had permanently blocked the city from enforcing an ordinance restricting the use of downtown parks for large-scale feedings.
In 2005, a group of political activists formed Orlando Food Not Bombs and began distributing free food at Lake Eola Park every Wednesday at 5 p.m. Three years later they added a second meal at the same park on Monday at 8 a.m.
The events drew from 50 to 120 people. Residents in neighborhoods near the park began to complain to city officials.
A second group also began offering public park meals to the homeless. Rather than organizing as a political group, the founders of the second group decided to call themselves the First Vagabonds Church of God. The church attracted about 40 members, most of them homeless and hungry.
Responding to the complaints of nearby residents, the city passed an ordinance that required any group conducting large scale feeding operations to obtain a permit. Only two permits a year would be issued for any one park.
The idea behind the ordinance was to allow the feedings to continue but limit the impact of the gatherings on local residents near particular parks by distributing the feedings to a wider range of parks.
Both Orlando Food Not Bombs and the First Vagabonds Church of God filed lawsuits asking a federal judge to declare the ordinance unconstitutional. The political group charged that the ordinance violated its free speech rights. The First Vagabonds Church argued the local measure violated their right to freely practice their religion.
A federal judge agreed with both groups and issued an injunction blocking enforcement of the ordinance. The ruling was reversed on appeal by a three-judge panel.
That’s when the full 11th Circuit entered the picture. The 10-judge court agreed in August to rehear the appeal. The court focused solely on the free speech claims raised by lawyers for Orlando Food Not Bombs.
The court decided unanimously to reverse the injunction and allow the city to enforce its ordinance restricting the number of homeless feeding events offered in downtown parks.
Pryor cited a 1984 US Supreme Court decision that upheld US Park Service restrictions on protesters sleeping in tents in Washington, D.C. parks near the White House. The protesters, members of the Committee for Creative Non-Violence, wanted to make a symbolic statement about the plight of the homeless.
The Park Service allowed the protesters to pitch several tents but barred anyone from spending the night in the tents.
The group filed a lawsuit claiming that sleeping in tents, in connection with their protest, was a protected form of free speech under the First Amendment.
The high court said it would assume, without deciding, that sleeping in the tents as part of a demonstration was protected free speech. But the justices said the Park Service regulations were reasonable and that the regulations left alternative channels of speech open to the protest group.
In the Orlando homeless feeding case, the Pryor said there are 42 parks in downtown Orlando. If the group obtained two permits for each park, it could conduct 84 feeding events a year. In addition, there are 66 other parks in the city with no restrictions on such events, Pryor said.
“The ordinance leaves open ample channels of communications: Orlando Food Not Bombs is not prevented by the ordinance from conducting as many political rallies, demonstrations, distributions of literature, or any other expressive activities as it likes at Lake Eola Park,” Pryor wrote.