Court Rules First Amendment Could Protect Food Sharing

A shared meal can foster community, bringing together people over food and drink. An appellate court last week ruled that a meal in a public space—in this case held weekly between anti-war activists and homeless residents of Fort Lauderdale—can also amount to free speech.

Fort Lauderdale Food Not Bombs hosts the vegan and vegetarian meals under consideration by the 11th U.S. Circuit Court of Appeals, which examined the Florida city’s 2014 ordinance restricting public food sharing aimed at the group and others who organized outdoor meals for the homeless. Food Not Bombs’ weekly events at Stranahan Park’s gazebo—adorned by a banner bearing the group’s name and logo of a fist clenching a carrot—are “expressive conduct” covered by the First Amendment, the three-judge panel concluded.

“The presence of banners, a table, and a gathering of people sharing food with all those present in a public park is sufficiently expressive. The reasonable observer at FLFNB’s events would infer some sort of message, e.g., one of community and care for all citizens,” wrote Judge Adalberto Jordan in an opinion that veered from Shakespeare’s Macbeth to the Boston Tea Party to musings on the meaning of breaking bread with others.

But the opinion doesn’t go so far as to strike down the city’s ordinance, sending the case back to U.S. District Judge William Zloch to decide whether it specifically violates the First Amendment and is unconstitutionally vague. Zloch had previously found that the First Amendment didn’t protect the group’s meals.

Still, Kirsten Anderson, the lead attorney for Food Not Bombs, said the decision is significant because it affirms that a non-religious group offering a shared meal is engaged in activities covered by the First Amendment. A 2016 report by the National Law Center on Homelessness & Poverty estimated that 6 percent of cities have food sharing bans, one of many laws, like prohibitions on camping in certain places or restricting panhandling, the group says essentially criminalizes being homeless.

“Now we have an opinion, [cities] have to recognize this First Amendment protection and legislate accordingly,” said Anderson, the director of litigation for Southern Legal Counsel.

For Fort Lauderdale Food Not Bombs, one of many local branches of a group founded 30 years ago in Cambridge, Massachusetts, the meals they host in the downtown park are not about providing charity to the homeless people who are known to gather there, Anderson said.

“They engage in peaceful, direct action. Their weekly food-sharing events are a political protest,” she said, noting that they purposefully choose to hold the meals in a public space. “They are intending to communicate a message that society can end hunger and poverty if we redirect resources away from military and war.”

Fort Lauderdale’s efforts to crack down on regular food sharing events gained national attention not long after the ordinance was passed in 2014. Police issued citations to then-90-year-old Arnold Abbott, a World War II veteran who had for years served meals to the homeless on the beach, sparking widespread media coverage, including on “The Colbert Report.” After those tensions, both Food Not Bombs and Abbott filed lawsuits and a state judge issued a temporary stay in Abbott’s case. The city has since not enforced the ordinance, allowing the meals on the beach and in the park to continue.

City Attorney Alain Boileau declined to comment on the decision. But in court filings, the city has argued that even if courts determine the meals are covered by the First Amendment, Fort Lauderdale’s ordinances place only reasonable restrictions such as requiring permits, mandating portable restrooms and setting temperature guidelines for the food.

In a 2015 brief, the city argued it has a compelling reason to make sure there are proper sanitary conditions and food handling procedures. The brief asserted that past problems at or after past events included loitering, public defecation and urination in the parks, trash pileups, and increases in panhandling.

The city’s laws provide “standards and criteria regulating the unfettered outdoor public feedings that on many occasions commandeer public property to the exclusion of all other uses,” Boileau wrote.

Broward County’s annual homeless census this year identified 2,318 people living on the street or in emergency shelters, down slightly from 2,450 in 2017. But there has been a much bigger drop since 2011, when the county counted 3,810 people as homeless, according to the Sun-Sentinel.

Chuck Thompson, executive director of the International Municipal Lawyers Association, said in an interview that the 11th Circuit opinion is the kind of decision his group would alert members to, so lawyers can be aware of the potential implications. He noted that it can be challenging for cities to balance policies responding to homelessness with other priorities, such as promoting tourism or business development in downtown areas.

“In some cities, I think their concern is that to solve the problem of homelessness, they want to figure out solutions to try to get people into areas where there are social services and housing,” Thompson said.

Across the country, some advocates for homeless people have argued that’s a problem with public food sharing: it isn’t geared toward getting people into more of a continuum of services.

Ted Greer Jr., chief executive officer of Hope South Florida, a Christian nonprofit that offers various services for the homeless in Fort Lauderdale said he applauds anyone who provides assistance to those in need. But he said the group believes their nightly meals inside church halls provide the kind of atmosphere to help figure out what kind of help a particular family or individual needs.

Megan Hustings, director of the National Coalition for the Homeless, said services are often taxed and not available right away for all who need them, so cities should make it easier for anybody to help the homeless, not harder.

“Because we have so many people forced to live outdoors with no other option, this act of being helpful to community and sharing food is the last thing we should be regulating,” she said.