GAINESVILLE, Fla. – After an order from the U.S. District Court for the Southern District of Florida compared the negative effects of adult entertainment to those of food sharing in a public park by Fort Lauderdale Food Not Bombs, Southern Legal Counsel (SLC) is appealing the case once again to the US. Court of Appeals for the 11th Circuit.

“The clear implication of the comparison is that sharing food attracts elements, specifically homeless people, that are inherently harmful to the public or even potentially criminal,” said SLC Litigation Director Kirsten Anderson, lead counsel for the case. “We reject that premise.”     

When ruling in August 2018 that the First Amendment protects the organization’s outdoor food sharing as “expressive conduct” under the First Amendment, the appeals court sent the case back to the lower court to determine whether a Ft. Lauderdale 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 lower court’s order, signed by Sr. U.S. District Judge William J. Zloch, asserts that Fort Lauderdale is “concerned with indirect secondary effects” of Fort Lauderdale Food Not Bombs’ sharing of food in the city’s Stranahan Park as part of their message that “food is a human right, not a privilege.” He cites Renton v. Playtime Theaters Inc., saying, “In that case, the Supreme Court upheld a zoning ordinance that restricted adult theaters not because of the content of their films but in order to ‘prevent crime, protect the city’s retail trade, maintain property values’ and generally maintain ‘the quality of urban life.’ ”

The order also repeatedly refers to food sharing by Fort Lauderdale Food Not Bombs 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.

“Our clients are engaged in core political speech through their weekly demonstrations,” said Andrea Costello, co-counsel with Florida Legal Services in the case. “The trial court’s decision discounts the free speech rights at issue here.”

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 grassroots movement and shares 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 that sent the case back to the lower court. “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.”

SLC will file its brief in the case Nov. 22, the Friday before Thanksgiving, a holiday Jordan cited along with the Boston Tea Party and the actions of Jesus Christ as age-old examples of food sharing practiced as expressive conduct.

Meanwhile, Fort Lauderdale Food Not Bombs will hold a “Banniversary” event to mark five years since Ft. Lauderdale’s enactment in November 2014 of the ordinance at issue in the case, which classifies sites temporarily used to provide free or low-cost meals as “social service facilities,” making them subject to restrictions.

“It has been five years since arrests of our members by the City of Fort Lauderdale for violating the city’s food sharing ban,” said Nathan Pim, volunteer with Fort Lauderdale Food Not Bombs and plaintiff in the lawsuit against the city. “We will continue to fight for our right to share food in the courts and beyond.”

The event, which will include remarks by pro bono attorney Mara Shlackman, who is SLC’s co-counsel in the case, will be held Saturday, Nov. 16, from 12 to 5 p.m. at the Unitarian Universalist Church of Fort Lauderdale, located at 3970 NW 21st Ave in Oakland Park.

Financial support for the suit has been provided through a grant by the Impact Fund.