GAINESVILLE, Fla. – In a groundbreaking opinion citing the examples of the Boston Tea Party, Jesus Christ, Pilgrims and Native Americans, the U.S. Court of Appeals for the 11th Circuit ruled that the First Amendment protects outdoor food sharing as “expressive conduct” under the First Amendment to the U.S. Constitution. This decision is the first pronouncement on this issue by any federal appeals court in the country.
Reversing the decision of the U.S. District Court for the Southern District of Florida, the federal appeals court sent the case of Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale back to the lower court to determine whether a city ordinance restricting food sharing that was enacted in 2014, as well as a related park rule, violate the First Amendment and are unconstitutionally vague.
The original case was filed in January 2015 on behalf of Fort Lauderdale Food Not Bombs and four of its members. Fort Lauderdale Food Not Bombs is affiliated with the international Food Not Bombs Movement and had been sharing food as part of weekly demonstrations in the city’s downtown Stranahan Park, a location where homeless people tend to congregate.
“[Fort Lauderdale Food Not Bombs] does not serve food as a charity, but rather to communicate its message ‘that [ ] society can end hunger and poverty if we redirect our collective resources from the military and war and that food is a human right, not a privilege, which society has a responsibility to provide for all,’ ” wrote Judge Adalberto Jordan in the federal appellate court opinion. “Providing food in a visible public space, and partaking in meals that are shared with others, is an act of political solidarity meant to convey the organization’s message.” Judges Gerald Tjoflat and John Steele joined Jordan in the 20-page opinion.
Nathan Pim, a member of Fort Lauderdale Food Not Bombs, was one of the individually named plaintiffs. “We are very pleased with this ruling, and we look forward to continuing our community organizing in Fort Lauderdale,” Pim said. “We hope we are one step closer to something we've fought for over many years — simply being able to help people without being threatened with arrest by people who should be working with us.”
Fort Lauderdale enacted its ordinance restricting food sharing in 2014 and began enforcing it against church groups and political activists, including Food Not Bombs participants, arresting them for handing out food to homeless people in public places. The ordinance was part of a
package of ordinances criminalizing homelessness the City adopted in 2014, including ordinances restricting camping and panhandling.
Kirsten Anderson, director of litigation for Southern Legal Counsel and the lead attorney for Fort Lauderdale Food Not Bombs in the case, said there has been a national trend toward the criminalization of homelessness and the proliferation of ordinances that ban sharing food with hungry and homeless people.
“The court’s opinion recognized sharing food with another human being is one of the oldest forms of human expression,” Anderson said. “We think this decision strengthens our message to cities across the country that they need to invest in constructive solutions to homelessness instead of wasting government resources on punishing people who seek to offer aid.”
Co-counsel Andrea Costello said the decision affirms Food Not Bombs’ constitutional right to gather together and share food to convey their political message in public parks.
“This is a huge victory for social justice activists under the current political climate where governments are trying to roll back the First Amendment rights of progressive movements,” Costello said.
The case was brought by Southern Legal Counsel and attorneys Andrea Costello and Mara Shlackman. Amicus briefs were filed by Tracy Segal of Akerman LLP on behalf of multiple Food Not Bombs groups, and by Florida Legal Services on behalf of legal scholars, including Professor Marc-Tizoc Gonzalez, Latina and Latino Critical Legal Theory Inc., and Society of American Law Teachers Inc.