FORT LAUDERDALE, Fla. – In a case going back to 2015, the U.S. Court of Appeals for the Eleventh Circuit held Aug. 31 that the City of Fort Lauderdale's Park Rule 2.2, banning outdoor food sharing as a social service in public parks, violates the First Amendment. 

“Fatally, the Park Rule imposes a permitting requirement without implementing any standards to guide City officials’ discretion over whether to grant a permit,” the opinion states. “Generally, subjecting protected expression to an official’s ‘unbridled Discretion’ presents ‘too great’ a ‘danger of censorship and of abridgment of our precious First Amendment freedoms.’”

Southern Legal Counsel (SLC), a statewide advocacy organization based in Gainesville, Fla., filed the original case along with co-counsel Andrea Costello of Florida Legal Services and Mara Shlackman on behalf of Fort Lauderdale Food Not Bombs (FLFNB) and four of its members and has since appealed twice, winning both times.

Affiliated with the international Food Not Bombs grassroots movement, FLFNB shares food with those who are homeless or hungry as part of weekly political demonstrations in the city’s downtown Stranahan Park.  

“We are excited by the Court’s ruling vindicating the free speech rights of our client Fort Lauderdale Food Not Bombs, who shares food to communicate their political message that food is a human right,” said SLC Executive Director Jodi Siegel. “This is a significant First Amendment victory, hard won after nearly seven years of litigation and two federal court appeals.”

In what was the first pronouncement on the issue by any federal appeals court in the country, the U.S. Court of Appeals for the 11th Circuit ruled in an August 2018 opinion that the First Amendment protects outdoor food sharing as “expressive conduct” under the First Amendment to the U.S. Constitution. That landmark opinion cited the examples of the Boston Tea Party, Jesus Christ, Pilgrims and Native Americans.

At the time the Court was reversing the decision of the U.S. District Court for the Southern District of Florida and sending the case 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, violated the First Amendment and were unconstitutionally vague. 

The district court then issued an order comparing the negative effects of adult entertainment to those of food sharing in a public park and repeatedly referring to food sharing by FLFNB as a “social service” in spite of the appeals court’s clear definition of the activity as “expressive conduct” associated with the broader context of a demonstration.

The federal appeals court’s latest opinion draws a comparison to Shuttlesworth v. City of Birmingham, in which city officials used a local ordinance to arrest and prosecute participants in a peaceful civil rights march held without a license, including Rev. Fred Shuttlesworth. 

“The risk that the ambiguity in the licensing regime would permit officials to target individuals, like Shuttlesworth, on the basis of their disfavored expression was too great for the First Amendment to bear,” the ruling states.  

The Court held that since the Park Rule is still in effect, the claims for injunctive relief, declaratory relief,  and damages under the Park Rule still remain. Additionally, the Court held that both the individual Plaintiffs and FLFNB have standing for damages claims under both the Park Rule and an Ordinance the city struck from its books while an earlier appeal in the case was pending. 

Accordingly, the federal appeals court reversed the district court’s summary judgment order and remanded the case for further proceedings consistent with its opinion. 

“The long and short of it is that the Park Rule as applied to the Plaintiffs’ expressive food sharing activities violates the First Amendment,” the Court concluded. 

Co-counsel Andrea Costello said FLFNB has never backed down in this fight to protect free speech. 

“Their victory shows how and why we need to protect and defend the First Amendment rights that are at the core of our democracy," she said.

Plaintiff Nathan Pim felt vindicated by the decision.

“We have painstakingly proven food is a right,” Pim said. “I hope people in power think twice before trying sharing bans here or anywhere.”

Plaintiff Haylee Becker said she is happy the court affirmed the organization’s right to demonstrate and stand in solidarity with the community. 

“The City of Fort Lauderdale and many other municipalities across the country have worked to silence demands to address inequality and meet the basic needs like food and housing for all their community members,” she said. “Today, I'm excited after years of legal battle, to have the court uphold our right to demonstrate our vision for a better world, freely."

Financial support for the suit has been provided through  grants by the Impact Fund and The Florida Bar Foundation.