Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale
Opinion
In understanding what is going on around us, context matters. Food shared with company differs greatly from a meal eaten alone. Unlike a solitary supper, a feast requires the host to entertain and the guests to interact. Lady Macbeth knew this, and chided her husband for "not giv[ing] the cheer" at the banquet depicted in Shakespeare's play. As she explained: "To feed were best at home; From thence, the sauce to meat is ceremony. Meeting bare without it." William Shakespeare, The Tragedy of Macbeth, Act III, scene 4 (1606).
Fort Lauderdale Food Not Bombs, a non-profit organization, hosts weekly events at a public park in Fort Lauderdale, sharing food at no cost with those who gather to join in the meal. FLFNB's members set up a table and banner with
*1238
the organization's name and emblem in the park and invite passersby to join them in sitting down and enjoying vegetarian or vegan food. When the City of Fort Lauderdale enacted an ordinance in 2014 that restricted this food sharing, FLFNB and some of its members (whom we refer to collectively as FLFNB) filed suit under
The district court granted summary judgment in favor of the City. It held that FLFNB's outdoor food sharing was not expressive conduct protected by the First Amendment and that the ordinance and park rule were not vague.
See
Ft. Lauderdale Food Not Bombs v. City of Ft. Lauderdale
,
Resolving the issue left undecided in
First Vagabonds Church of God v. City of Orlando, Florida
,
I
FLFNB, which is affiliated with the international organization Food Not Bombs, engages in peaceful political direct action. It conducts weekly food sharing events at Stranahan Park, located in downtown Fort Lauderdale. Stranahan Park, an undisputed public forum, is known in the community as a location where the homeless tend to congregate and, according to FLFNB, "has traditionally been a battleground over the City's attempts to reduce the visibility of homelessness." D.E. 41 at 8.
At these events, FLFNB distributes vegetarian or vegan food, free of charge, to anyone who chooses to participate. FLFNB 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." D.E. 39 at 1. 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.
FLFNB sets up a table underneath a gazebo in the park, distributes food, and its members (or, as the City describes them, volunteers) eat together with all of the participants, many of whom are homeless individuals residing in the downtown Fort Lauderdale area. See D.E. 40-23. FLFNB's set-up includes a banner with the name "Food Not Bombs" and the organization's logo-a fist holding a carrot-and individuals associated with the organization pass out literature during the event. See id .
On October 22, 2014, the City enacted Ordinance C-14-42, which amended the City's existing Uniform Land Development Regulations. Under the Ordinance, "social services" are
[a]ny service[s] provided to the public to address public welfare and health such as, but not limited to, the provision of food; hygiene care; group rehabilitative or recovery assistance, or any combination thereof; rehabilitative or recovery programs utilizing counseling, self-help or other treatment of assistance; and day shelter or any combination of same.
*1239 D.E. 38-1, § 1.B.6. The Ordinance regulates "social service facilities," which include an "outdoor food distribution center." D.E. 38-1, § 1.B.8. An "outdoor food distribution center" is defined as
[a]ny location or site temporarily used to furnish meals to members of the public without cost or at a very low cost as a social service as defined herein. A food distribution center shall not be considered a restaurant.
D.E. 38-1, § 1.B.4.
The Ordinance imposes restrictions on hours of operation and contains requirements regarding food handling and safety. Depending on the specific zoning district, a social service facility may be permitted, not permitted, or require a conditional use permit.
See
D.E. 38-1 at 9. Social service facilities operating in a permitted use zone are still subject to review by the City's development review committee.
See
Stranahan Park is zoned as a "Regional Activity Center-City Center," D.E. 38-34, and requires a conditional use permit. See D.E. 38-1 at 9. To receive a conditional use permit, applicants must demonstrate that their social service facilities will meet a list of requirements set out in § 1.E of the Ordinance.
The City's "Parks and Recreation Rules and Regulations" also regulate social services. Under Park Rule 2.2,
[p]arks shall be used for recreation and relaxation, ornament, light and air for the general public. Parks shall not be used for business or social service purposes unless authorized pursuant to a written agreement with City.
As used herein, social services shall include, but not be limited to, the provision of food, clothing, shelter or medical care to persons in order to meet their physical needs.
D.E. 38-35.
The City has voluntarily not enforced Ordinance C-14-42 and Park Rule 2.2 since February of 2015.
II
FLFNB contends that the Ordinance and Park Rule 2.2 violate its rights to free speech and free association guaranteed by the First Amendment, which is made applicable to state and local governments through the Due Process Clause of the Fourteenth Amendment.
See
D.E. 1 at 21;
Gitlow v. New York
,
The City defends the district court's summary judgment ruling. It asserts that the food sharing events at Stranahan Park are not expressive conduct because the act of feeding is not inherently communicative of FLFNB's "intended, unique, and particularized message." See City's Br. at 35. Understanding the events, according to the City, depends on explanatory speech, such as the signs and banners, indicating that FLFNB's conduct is not inherently expressive.
We review the district court's grant of summary judgment
de novo
.
See
Rodriguez v. City of Doral
,
*1240
Hamilton v. Southland Christian Sch., Inc.
,
There is an additional twist to these standards of review in the First Amendment context. Because "the reaches of the First Amendment are ultimately defined by the facts it is held to embrace ... we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the line of constitutional protection."
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.
,
III
Constitutional protection for freedom of speech "does not end at the spoken or written word."
Texas v. Johnson
,
Several decades ago, the Supreme Court formulated a two-part inquiry to determine whether conduct is sufficiently expressive under the First Amendment: (1) whether "[a]n intent to convey a particularized message was present;" and (2) whether "in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it."
Spence v. Washington
,
A
On this record, we have no doubt that FLFNB intended to convey a certain message.
See
Spence
,
"Whether food distribution [or sharing] can be expressive activity protected by the First Amendment under particular circumstances is a question to be decided in an as-applied challenge[.]"
Santa Monica Food Not Bombs v. City of Santa Monica
,
It should be no surprise, then, that the circumstances surrounding an event often help set the dividing line between activity that is sufficiently expressive and similar activity that is not. Context separates the physical activity of walking from the expressive conduct associated with a picket line or a parade.
See
United States v. Grace
,
The district court concluded that "outdoor food sharing does not convey [FLFNB's] particularized message unless it is combined with other speech, such as that involved in [FLFNB's] demonstrations." D.E. 78 at 24. This focus on
*1242
FLFNB's particularized message was mistaken. As
Holloman
teaches, the inquiry is whether the reasonable person would interpret FLFNB's food sharing events as "
some
sort of message."
B
The district court also failed to consider the context of FLFNB's food sharing events and instead relied on the notion that the conduct must be "combined with other speech" to provide meaning. See D.E. 78 at 24. As we explain, the surrounding circumstances would lead the reasonable observer to view the conduct as conveying some sort of message. That puts FLFNB's food sharing events on the expressive side of the ledger.
First, FLFNB sets up tables and banners (including one with its logo) and distributes literature at its events. This distinguishes its sharing of food with the public from relatives or friends simply eating together in the park.
Cf.
Hurley
,
Second, the food sharing events are open to everyone, and the organization's members or volunteers invite all who are present to participate and to share in their meal at the same time. That, in and of itself, has social implications. See Mary Douglas, "Deciphering a Meal," in Implicit Meanings: Selected Essays in Anthropology 231 (1975) ("Like sex, the taking of food has a social component, as well as a biological one.").
Third, FLFNB holds its food sharing in Stranahan Park, a public park near city government buildings.
See
Spence
,
Fourth, the record demonstrates without dispute that the treatment of the City's homeless population is an issue of concern in the community. The City itself admits that its elected officials held a public workshop "on the Homeless Issue" in January of 2014, and placed the agenda and minutes of that meeting in the summary judgment record.
See
City's Br. at 12; D.E. 38 at ¶ 16; D.E. 38-19. That workshop included several "homeless issues, including public feedings in the C[ity's] parks and public areas." D.E. 38 at ¶ 16. It is also undisputed that the status of the City's homeless population attracted local news coverage beginning years before that 2014 workshop. We think that the local discussion regarding the City's treatment of the
*1243
homeless is significant because it provides background for FLFNB's events, particularly in light of the undisputed fact that many of the participants are homeless. This background adds to the likelihood that the reasonable observer would understand that FLFNB's food sharing sought to convey some message.
See
Johnson
,
Fifth, it matters that FLFNB uses the sharing of food as the means for conveying its message, for the history of a particular symbol or type of conduct is instructive in determining whether the reasonable observer may infer some message when viewing it.
See
Monroe v. State Court of Fulton Cnty.
,
Like the flag, the significance of sharing meals with others dates back millennia. The Bible recounts that Jesus shared meals with tax collectors and sinners to demonstrate that they were not outcasts in his eyes. See Mark 2:13-17; Luke 5:29-32. In 1621, Pilgrims and Native Americans celebrated the harvest by sharing the First Thanksgiving in Plymouth. President Abraham Lincoln established Thanksgiving as a national holiday in 1863, proclaiming it as a day of "Thanksgiving and Praise to our beneficent Father" in recognition of blessings such as "fruitful fields and healthful skies." John G. Nicolay & John Hay, 2 Abraham Lincoln: Complete Works 417-418 (1894). Americans have celebrated this holiday ever since, commonly joining with family and friends for traditional fare like turkey and pumpkin pie.
On this record, FLFNB's food sharing events are more than a picnic in the park. FLFNB has established an intent to "express[ ] an idea through activity,"
Spence
,
C
The City, echoing the district court's analysis, relies on
FAIR
, in which the Supreme Court explained that "[t]he fact that [ ] explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under
O'Brien
."
In
FAIR
, a number of law schools claimed that the Solomon Amendment-which denies federal funding to an institution that prohibits the military from gaining access to its campus and students " 'for purposes of military recruiting in a manner that is at least equal in quality and scope to access to campuses and to students that is provided to any other employer' "-violated their rights under the First Amendment.
See
The Supreme Court held that it was not.
See
id
. at 66,
Explanatory speech is not necessary in this case. Although such speech cannot create expressive conduct,
see
We decline the City's invitation,
see
City's Br. at 21, to resurrect the
Spence
requirement that it be likely that the reasonable observer would infer a particularized message. The Supreme Court rejected this requirement in
Hurley
,
The district court expressed some concern that
FAIR
does not align with the understanding in "
Holloman
[ ] and perhaps also
Hurley
[ ] ... of a particularized message." D.E. 78 at 21. We do not believe that
FAIR
undermines
Hurley
or that it abrogates
Holloman
.
FAIR
does not discuss the need for a particularized message at all. Nor does it cite to how
Spence
phrased that requirement.
FAIR
did, however, discuss
Hurley
. The Supreme Court explained that "the law schools' effort to cast themselves as just like ... the parade organizers in
Hurley
... plainly overstates the expressive nature of their activity," and was therefore unavailing.
FAIR
,
IV
"[T]he nature of [FLFNB's] activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that [FLFNB] engaged in a form of protected expression."
Spence
,
We decline to address whether Ordinance C-14-42 and Park Rule 2.2 violate the First Amendment and whether they are unconstitutionally vague. These issues are best left for the district court to take up on remand. 2
REVERSED AND REMANDED.
See also
Stewart v. Baldwin Cnty. Bd. of Educ.
,
The district court stated that its rejection of FLFNB's vagueness challenges was affected, although "to a lesser extent," by its ruling that FLFNB's conduct was not protected by the First Amendment. See D.E. 78 at 27. Given our ruling that FLFNB's food sharing events constitute expressive conduct, we think that the district court is in the best position to reassess its ruling on the vagueness issues in the first instance.
Reference
- Full Case Name
- FORT LAUDERDALE FOOD NOT BOMBS, Nathan Pim, Jillian Pim, Haylee Becker, William Toole, Plaintiffs-Appellants, v. CITY OF FORT LAUDERDALE, Defendant-Appellee.
- Cited By
- 37 cases
- Status
- Published