Food Fight Hits 11th Circuit as Charities Resist Restrictions on Public Giveaways
December 21, 2009
As tough economic times linger, a federal appeals court panel sitting in Atlanta on Thursday considered how far cities may go in regulating how charity groups distribute food to the poor.
At issue in Thursday's argument before the 11th U.S. Circuit Court of Appeals was a 2006 Orlando ordinance that requires a permit to distribute food to 25 people or more in one of the 42 city parks located in the city's downtown park district. A lawyer for Orlando suggested that big food drops overload the parks' garbage cans, while lawyers for the charity organizations have said the city's rule -- which allows them each only two permits a year per park -- prevents them from sharing food at a consistent, desirable location.
When the case went before U.S. District Court Judge Gregory A. Presnell in Orlando, those organizations successfully challenged the ordinance on the basis that it violated their freedom of speech and religion. On Thursday, however, they encountered some skepticism from two of the three judges on the 11th Circuit panel, 11th Circuit Judge J.L. Edmondson and visiting 10th Circuit Senior Judge Bobby R. Baldock.
But first, Orlando's lawyer had to endure the persistent questioning of 11th Circuit Judge Rosemary Barkett, a Miami jurist who wondered how the ordinance might apply to her family's outdoor Sunday gatherings. "I have a particularly large family," she explained.
"It would apply to you," acknowledged Kathleen M. Skambis, a lawyer in private practice in Orlando who appeared for the city.
Barkett wondered where she could find evidence that the food distributions put a burden on the parks, saying she understood the groups challenging the law cleaned up their trash.
They put their trash in garbage receptacles, Skambis allowed. But, she added, mass feedings create a large amount of garbage, and it piles up.
"What is the purpose of having a city park?" Barkett asked, suggesting she thought eating, drinking and playing music are the very sort of things for which a park is intended.
Certainly the parks' purpose is to have people use them, Skambis replied.
"Including homeless people?" asked Barkett.
Including homeless people, Skambis responded.
Baldock, the visiting judge, asked Skambis about a 1984 U.S. Supreme Court decision, Clark v. Community for Creative Non-Violence, 468 U.S. 288. That case upheld the National Park Service's refusal to let demonstrators supporting the homeless sleep overnight in tents on the National Mall and in a park across the street from the White House.
In that case, the court assumed, but did not decide, that sleeping could be expressive conduct protected by the First Amendment. But it rejected the First Amendment challenge on the grounds that the Park Service's decision was reasonable given the camping could damage the parks or impede others' access to them.
On Thursday, Baldock asked whether the city of Orlando was conceding that the food distributions amounted to expressive conduct.
No, Skambis replied, "This is not expressive conduct."
Glenn M. Katon of the ACLU Foundation of Florida appeared on behalf of two plaintiffs, the founder of the First Vagabonds Church of God, a congregation of homeless people that meets in one of Orlando's downtown parks, and the church itself.
He said his clients had conceded the ordinance need pass only the "rational basis test" to survive the plaintiffs' challenge on free exercise of religion grounds. But, Katon said, the government does not have a legitimate interest in driving the homeless from downtown.
"I don't know," mused Edmondson. Regardless of whether he liked the idea himself, said Edmondson, it seemed rational for the city "to move the burden around."
"The court's role is more than that of a rubber stamp," responded Katon. Witnesses for the city had expressed irrational fears, he said, adding that at least one witness -- a lawyer whose law office is downtown -- clearly displayed an animus toward the homeless.
Katon split his time with Jacqueline H. Dowd, a lawyer with Orlando's Legal Advocacy at Work who appeared for Orlando Food Not Bombs and other individual plaintiffs. Baldock asked Dowd about the Supreme Court's decision on the tent demonstration at the National Mall. "Clark does not seem to help you at all," Baldock told Dowd.
Dowd replied that Clark was distinguishable from her case. Sleeping in the federal parks was forbidden as a general matter, she said, while her case was about sharing food in a picnic area. "It is not an act that's generally forbidden," said Dowd.
Moreover, she added, "the sharing of food is intended to convey a message" that would be protected by the First Amendment.
But Baldock suggested that without the signs that surrounded Food Not Bombs' food distributions -- featuring slogans such as "Money for Food Not Bombs" and "We Won't Stop Until The Last Belly Is Full" -- Dowd's clients had no expressive conduct. The Vagabonds Church may have a different message, he said, but "you're just feeding the homeless."
Food Not Bombs believes the residents of the middle-class neighborhood surrounding the downtown parks need to hear that there are hungry and homeless people in Orlando, Dowd replied. "It's more than talking about the food," she said. "There is, I think, inherent in the serving and sharing of food some message," which she characterized as one of "human worth and dignity."
Edmondson asked Dowd whether the city could forbid eating in the parks altogether.
"I don't think the citizens would like that," Dowd responded.
"We're not governing the city," replied Edmondson.
Dowd tried again, saying her clients would say there's a basic human right to food.
"Your clients have many lovely thoughts ... but I'm not much interested in them right now," said Edmondson.
Dowd responded that whether a ban on food would be constitutional depended on the justification for it.
Skambis, the city's lawyer, returned to the lectern for rebuttal -- and more questioning from Barkett.
"The city is in the business of balancing competing interests every single day," said Skambis, noting there were "an overwhelming number of complaints" about people wandering the area after the food distributions.
"What would be the harm of walking through the neighborhood?" asked Barkett, wondering whether the people leaving the food sharings had done anything illegal.
"Some of them probably did," responded Skambis, "but that's not my point."
"The complaints were 'we don't want homeless walking through the neighborhood,'" Barkett rejoined. "You just said it."
"Some of the complaints were obnoxious," Skambis allowed. "They don't like homeless people." But, she said, "if the ordinance addresses a particular interest that is legitimate ... this court may not substitute its judgment for that of the city."
In Atlanta, church groups and Food Not Bombs pass out food outdoors, according to Atlanta civil liberties lawyer Gerald R. Weber Jr. He said most of the outside food distributions occur on private property with the consent of the owners, but there are also weekend food distributions in downtown's Woodruff Park, located a few blocks from the 11th Circuit courthouse where Thursday's arguments took place.
No ordinance requires a permit for the periodic serving of food in the parks in Atlanta, Weber said. He said about six years ago, when he was legal director of the ACLU of Georgia, he represented Food Not Bombs over food distributions in Woodruff Park. Georgia State University had taken over policing of the park and suggested that the food distributions there violated health codes, he explained. No lawsuit was filed, said Weber, but he raised First Amendment arguments and reached an understanding with the city of Atlanta that it would not require a permit for the distributions.
The 11th Circuit case is City of Orlando v. First Vagabonds Church of God, No. 08-16788.
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