California Assembly Bill 2178 Threatens Food Sharing Throughout the State

Thanks to Pantea Javidan (chair of the board of directors for the Center for Empowering Refugees and Immigrants (Oakland)), last week I learned about and listened to Sabrina Jacobs’ September 10, 2018 interview of Keith McHenry (co-founder of Food Not Bombs) and Barbara Brust (co-founder of Consider the Homeless) on KPFA’s A Rude Awakening.

As McHenry and Brust explained, California Assembly Bill 2178 (Limón) (AB 2178) purports to regulate reasonably “Limited Service Charitable Feeding Operations,” but will instead predictably burden food-sharing activists with onerous and costly requirements to preregister and otherwise comply with a local law enforcement agency in order to peaceably assemble in public to share food with hungry people.

Based on my multi-year research into the food-sharing cases, I immediately apprehended AB 2178 as a savvy, and possibly cynical, attempt to end run around the constitutional protections that federal courts have extended to food-sharing activists who challenge their prosecution under municipal ordinances that similarly threaten misdemeanor punishment if the activists refuse to comply with burdensome prior permitting requirements.

McHenry and Brust explained that Assemblymember Limón has a good reputation as a progressive legislator, so I have no cause to question her good faith intentions, but I do wonder about the bill’s primary supporter, the California Association of Environmental Health Administrators because I have long searched for an organizational sponsor of the municipal anti-food-sharing laws, which resemble each other so greatly that I’ve long suspected they must have a common source.

While AB 2178 purports concern for the wellbeing of hungry people (food-insecure in the new federal parlance), like all of the anti-food-sharing laws that I have studied, it threatens misdemeanor punishment against people who freely organize themselves to peaceably assemble in public, if city-owned, places in order to share meals with any and all passersby. While such laws typically purport concern for public health and/or public safety (and sometimes competing uses of city-owned properties or the aesthetics of parks), discovery almost always surfaces an invidious animus against homeless or otherwise visibly poor people, and the contexts typically are neighborhoods undergoing the displacement and revitalization processes of gentrification. Thus, from a constitutional perspective, such laws are illegitimate because invidious animus cannot constitute a legitimate governmental interest.

Anti-food-sharing laws like AB 2178 are bad policy because they do nothing to address the underlying causes of hunger but instead exacerbate the problem of hunger by deterring some food-sharing activists from their activity (for fear of misdemeanor arrest and prosecution), but what’s particularly odd about AB 2178 is that controlling precedent of the U.S. Court of Appeals for the Ninth Circuit suggests that if the bill becomes law, political activists who challenge its constitutionality will very likely prevail. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006). Moreover, religious activists also have a good chance of challenging the law because of the statutory protections of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Cf. Marc-Tizoc González, Criminalizing Charity: Can First Amendment Free Exercise of Religion, RFRA, and RLUIPA Protect People who Share Food in Public?, 7 U.C. Irvine L. Rev. 291, 300, 320-21, 323, 335-37 (2017).

In conclusion, if you care to protect people who publicly share food with hungry people, please consider lobbying Governor Brown to veto AB 2178. You can call his office at 916-445-2841, fax him at 916-558-3160, or email him through this webform, (which features a dropdown menu to target your message on AB 2178). (You might also consider tweeting him,, and if so using a hashtag like #vetoAB2178.)

Please act today. The bill was enrolled on September 4, 2018 and delivered to Governor Brown’s desk on September 11, 2018 at 4:30pm.

For further information on this issue, see

Finally, below my signature is a version of the letter that I sent today to Governor Brown through the webform. (It is missing some of its original formatting.) And here is a PDF of the original letter, which I encourage you to share broadly with people who care about mitigating hunger through the public sharing of food and protecting the rule of law over authority.



September 18, 2018

Governor Edmund G. Brown
c/o State Capitol, Suite 1173
Sacramento, CA 95814

Re: Urgent plea that you veto Assembly Bill 2178 (Limón)

Dear Governor Brown:

I hope my letter finds you well. As explained below, I urge you to veto Assembly Bill 2178 (Limón). Despite its good intentions, if enacted into law, AB 2178 will predictably harm the hungry people who currently benefit when religious and political activists peaceably assemble to share food in public. Moreover, when activists charged with a misdemeanor for violating the new law challenge its constitutionality, the federal courts will likely find that it violates the First Amendment as interpreted by controlling Ninth Circuit precedent. Finally, the law does nothing to help hungry people in California.

As you know, California’s great abundance is unequally distributed. While the majority of the populace eats their fill, those at society’s margins hunger for justice and bare subsistence. Recall the early 1980s when groups like Sacramento’s Loaves and Fishes, and myriad others, formed to extend the ministry of the Catholic Worker Movement to charitably provide free meals to those who hunger. By the end of the 1980s, similar though secular groups formed, including the international Food Not Bombs movement, which publicly shared food to demonstrate social solidarity and mutual aid and which recently won an important legal victory when the U.S. Court of Appeals for the Eleventh Circuit held that the weekly food-sharing demonstrations of Fort Lauderdale Food Not Bombs in a downtown park constituted expressive conduct protected by the Free Speech Clause. Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, No. 16-16808, 2018 WL 4000057 (11th Cir. Aug. 22, 2018),

As a law professor who has studied the food-sharing cases for several years and published two law review articles analyzing their implications for First Amendment jurisprudence, critical sociolegal theory, and municipal law and policy, I believe that the Eleventh Circuit’s recent opinion aligns with the Ninth Circuit’s opinion in Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006). In that case, the Ninth Circuit ruled that the implementation of a municipal community events ordinance was not narrowly tailored where its mandatory administrative instruction required groups smaller than 150 people to obtain a permit prior to holding an event within Santa Monica if those groups advertised their event. In so ruling, the Ninth Circuit cited approvingly to a Sixth Circuit opinion, American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600 (6th Cir. 2005), which questioned whether the city has a constitutionally legitimate governmental interest to regulate small groups of people who peaceably assemble to demonstrate on city-owned public property. Santa Monica Food Not Bombs, 450 F.3d at 1040 (citing Am.-Arab Anti-Discrimination Comm., 418 F.3d at 608).

Despite its nominally reasonable attempt to regulate “Limited Service Charitable Feeding Operations,” AB 2718 will predictably deter groups that currently publicly share food in California cities because its requirement that they preregister and otherwise comply with a local enforcement agency is onerous and likely to result in arbitrary enforcement: as you know, the Supreme Court’s First Amendment jurisprudence has long-abhorred prior restraints on speech activities. E.g., Near v. Minnesota, 283 U.S. 697 (1931); Hague v. Comm. for Indus Org., 307 U.S. 496 (1939); Schneider v. State, 308 U.S. 147 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940); Jamison v. Texas, 318 U.S. 413 (1943); Thomas v. Collins, 323 U.S. 516 (1945); Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Brown v. Louisiana, 383 U.S. 131 (1966); Gregory v. City of Chicago, 394 U.S. 111 (1969); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); New York Times Co. v. United States, 403 U.S. 713 (1971).

The Court disfavors prior restraints on speech because prior permit policies have too often strayed away from the legitimate purpose of reasonably regulating potentially competing uses of city-owned public spaces. In mandating registration with a local enforcement agency, AB 2718 makes it all too likely that rather than resulting in the reasonable requirement to reserve in advance a picnic table and barbecue pit in order to host a birthday party at a public park, local authorities will misuse the law to arbitrarily deny peaceable assembly rights to disfavored groups. In the 1930s, these were industrial unionists. In the 1950s and 1960s they were Black civil rights organizers. In the 1970s they were journalists seeking to publicize the Pentagon Papers, and in a series of lower-court cases beginning in the 1980s, they have been the religious and political activists charged with misdemeanor crimes for publicly sharing food without a permit.

My research has found that all too often anti-food-sharing laws bear traces of unconstitutional animus against homeless and otherwise visibly poor people in neighborhoods that are undergoing the gentrification processes of displacement and revitalization. In case after case, discovery has demonstrated that city legislators first considered enacting such laws after receiving a handful of complaints about homeless people in the environs, which typically featured never-verified allegations about their unsanitary presence that quickly assumed the semblance of settled fact. While allegations and beliefs that homeless people constitute a public nuisance may accord with popular negative stereotypes, the Supreme Court has repeatedly held that invidious animus cannot constitute a legitimate governmental interest. E.g., Dep’t. of Agric. v. Moreno, 413 U.S. 528 (1973); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Romer v. Evans, 517 U.S. 620 (1996). See also Susannah W. Pollvogt, Unconstitutional Animus, 81 FORDHAM L. REV. 887 (2012).

Not knowing Assemblymember Limón personally, I do not question her good faith intentions when the bill’s supporters—the California Association of Environmental Health Administrators and the County of Santa Clara—persuaded her to author the bill, but in light of my research, AB 2178 appears like a savvy end run around the constitutional protections that federal courts have extended to food-sharing activists who defended themselves against prosecution under similar local laws.

To conclude, if AB 2178 becomes law, it will predictably deter some food-sharing activists from attempting to mitigate hunger in California (for fear of being charged with a misdemeanor crime), waste California’s precious resources when other food-sharing activists challenge its constitutionality in federal court (with controlling Ninth Circuit precedent and persuasive Sixth and Eleventh Circuit case law in their favor), and, most lamentably, do nothing to address the underlying causes of hunger in California.

Please veto AB 2178.

If you desire, I would be happy to discuss this matter with you or a member of your staff. The best way to schedule a teleconference is to email me at

Very truly yours,

Marc-Tizoc González
Professor of Law
St. Thomas University School of Law
16401 NW 37th Avenue
Miami Gardens, FL 33054

Cc: California legislators and national homeless rights advocates.

N.B. For detailed analysis of the food-sharing cases beyond the aforementioned judicial opinions and articles, see Marc-Tizoc González, Hunger, Poverty, and the Criminalization of Food Sharing in the New Gilded Age, 23 AM. U. J. GENDER & SOC. POL’Y & L. 231 (2015); Marc-Tizoc González, Criminalizing Charity: Can First Amendment Free Exercise of Religion, RFRA, and RLUIPA Protect People who Share Food in Public?, 7 U.C. IRVINE L. REV. 291 (2017); Brief of Amici Curiae Marc-Tizoc González, Florida Legal Services, Inc., Latina and Latino Critical Legal Theory, Inc., and Society of American Law Teachers, Inc. Supporting Plaintiffs-Appellants Urging Reversal, Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, No. 16-16808, 2017 WL 835127 (11th Cir. 2017) (Appellate Brief). Along with a copy of this letter, these texts are available online at FoodSharingLaw.Net,

Eleventh Circuit rules that the First Amendment protects the “expressive conduct” of Fort Lauderdale Food Not Bombs—Part I of II

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 v. City of Fort Lauderdale, No. 16-16808, 2018 WL 4000057 (11th Cir. Aug. 22, 2018), at 2

So begins Judge Jordan’s opinion in the latest litigated food-sharing case, Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale.

This is an opinion worth reading, especially for food-sharing activists, lawyers and laypersons interested in Free Speech jurisprudence, and the public officials who will legislate or adjudicate the next food-sharing case.

As my first substantive post to, Part I of this essay overviews the latest litigated food-sharing case, Fort Lauderdale Food Not Bombs, links to numerous relevant primary documents, and ultimately explains why, but not how, the United States Court of Appeals for the Eleventh Circuit reversed the district court’s order of summary judgment in favor of the defendant city (“City”). I intend the essay for people who seek a deeper understanding of the food-sharing cases than offered by journalism regarding the opinion’s publication on August 22, 2018. E.g., ABC Local 10; ForbesSun Sentinel;  WLRN; and (again) WLRN.

I plan to post Part II of the essay next week. It will feature a detailed analysis of the Eleventh Circuit’s opinion, explain how it harmonized two Supreme Court opinions regarding the Free Speech doctrine of “expressive conduct,” and discuss its broader implications for challenging similar laws that criminalize people who are homeless or otherwise visibly poor in our post-vagrancy law era.

Overview of Part I

As suggested by the opening quote, Judge Jordan’s opinion provides an eloquent, erudite, and humane adjudication of a sociolegal conflict of national significance: on the one side, the plaintiffs-appellants—and those like them in cities across the United States—people who organize themselves according to the principles of the international Food Not Bombs movement, which publicly protests the violence and avarice of war by demonstrating that society has the abundance to fulfill the nutritional needs of people who are homeless, impoverished, or otherwise hungry. All it takes is a small group of people who are willing to cook a (vegan or vegetarian) meal, bring it to a downtown park, and share it freely with those who are hungry.

On the other side, City leaders, in this case the five-member Fort Lauderdale City Commission, which legislated in late October 2014 that publicly sharing food would henceforth almost always require an application for a conditional use permit, submitted to the City’s Planning and Zoning Board, because the new law declared that “outdoor food distribution” constituted a “social service” and therefore implicated multiple governmental interests (e.g., public health, public safety, park aesthetics, and competing uses), which (allegedly) justified the regulation.

For the food-sharing activists, the City had promulgated yet another “homeless hate law.” For the City leaders, the “Social Service Facilities” law merely expanded ongoing plans to regulate unsavory, unsightly, and unauthorized social services that interfered with their vision for the City, particularly in City-owned properties like Stranahan Park, located two blocks north of trendy East Las Olas Boulevard beside the Broward County Main Library and Fort Lauderdale Woman’s Club, which had become a focal point in a multi-year social struggle over people who are homeless or otherwise visibly poor.

Fort Lauderdale’s 2014 “Social Service Facilities” Law

In November 2014 the case caught national attention, in part because the first three people arrested under the new law were 90-year-old World War II veteran, Arnold Abbott, whose Love Thy Neighbor Fund has provided free meals in Fort Lauderdale for decades; the Rev. Canon Mark Sims of St. Mary Magdalene Episcopal Church; and Pastor Dwayne Black of The Sanctuary. No less a comedian than Stephen Colbert lampooned the situation in a brilliant parody that referred to the Beatitudes and miracle of the loaves and fishes.

Under Florida’s Religious Freedom Restoration Act of 1988 (FRFRA), however, the religiously-motivated activists were almost certain to prevail against Fort Lauderdale—because FRFRA strictly protects people’s rights to exercise their religion. Moreover, Abbott had already used FRFRA to beat the City over a decade earlier in state court when arrested under an earlier attempt to dissuade the public sharing of food. (For further discussion of Abbott and an in-depth analysis of FRFRA, see pages 319-20 and 328-35 of my article, Criminalizing Charity: Can First Amendment Free Exercise of Religion, RFRA, and RLUIPA Protect People who Share Food in Public?, 7 U.C. Irvine L. Rev. 291 (2017).)

The U.S. District Court for the Southern District of Florida’s 2016 Order Granting the City’s Motion for Summary Judgment

Because of how courts interpret the First Amendment Free Speech Clause, until now it has been uncertain whether the politically-motivated activists (i.e., Fort Lauderdale Food Not Bombs), whom the City had also arrested for violating its 2014 law, would prevail in their challenge to its constitutionality. Indeed (now Senior) U.S. District Judge for the Southern District of Florida William J. Zloch ruled against the plaintiffs in his September 2016 Order and in favor of the City’s motion for summary judgment. Cf. Final Judgment, Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, No. 15-60185-CIV-ZLOCH, 2016 WL 5942528 (S.D. Fla. Oct. 3, 2016).

Asserting that the instant case required him to reach beyond the Eleventh Circuit’s controlling precedent, First Vagabonds Church of God v. City of Orlando, Florida, 638 F.3d 756 (11th Cir. 2011) (en banc), in his Order Judge Zloch opined  that “Plaintiffs’ outdoor food sharing is not expressive conduct protected by the First Amendment.” Order at 27. Cf. id. at 17. Hence he granted the City’s motion for summary judgment, denied the plaintiffs’ cross motion, and set the scene for their timely appeal.

In my view, Judge Zloch’s Order and Final Judgment merited reversal for two substantial errors of law. First, Judge Zloch seemed not to draw all reasonable inferences in favor of the nonmoving party: the plaintiffs had submitted an expert declaration by Richard Wilk, Ph.D., who was at that time a Distinguished and Provost’s Professor of Anthropology at Indiana University, and the defendants had not rebutted it with any counter-evidence.  Professor Wilk (who cofounded the Indiana University Food Institute, served on the executive board of the Association for the Study of Food and Society, and had served as president and secretary-treasurer of the Society for Economic Anthropology) carefully explained why anthropologists and other food studies scholars understand practices like food gifting and food sharing to be communicative and rich with cultural meanings. Thus, even if the court found Professor Wilk to lack credibility, which itself seems clearly erroneous, it was reversible error to grant Fort Lauderdale’s motion—since the City bore the burden to show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Order at 7. Instead, the un-rebutted declaration seemed to demonstrate a genuine dispute regarding the material fact of whether the plaintiffs’ weekly food sharing demonstration at Stranahan Park was “expressive” within the meaning of the Free Speech Clause, so the case should have survived summary judgment and proceeded toward trial.

Beyond the procedural and evidentiary error, Judge Zloch’s Order expressed a second reversible error where it mentioned that Fort Lauderdale’s law made “at least some reference to the content of the alleged regulated speech, or, in this case, expressive conduct.” Order at 16. The Order elaborated, “If food sharing is protected as expressive conduct under the First Amendment, then these regulations at least arguably differentiate between types of food sharing based on their aims, or content.” Id. at 16-17; cf. id. at 23-24 (“If food sharing is protected expressive conduct, then Plaintiffs’ food sharing, specifically, is being targeted.”).

As every student of First Amendment law learns, to discriminate on the basis of content is taboo under the Free Speech Clause; such laws are subject to the strictest scrutiny. In contrast, laws that a court finds to be “content-neutral” are subject to a lesser, “intermediate,” judicial scrutiny. Thus, when reading Judge Zloch’s Order, one sees the court cognize that Fort Lauderdale’s law facially discriminates on the basis of speech-related content, but then reads that such discrimination is not unconstitutional because the underlying conduct is “not expressive conduct protected by the First Amendment.” Id. at 27. Judge Zloch’s Order thus seems unduly outcome determinative.

The Plaintiffs’ 2017 Appeal to the Eleventh Circuit

In their January 2017 appellate brief, the plaintiffs-appellants urged the Eleventh Circuit to hold that the Free Speech Clause protects Fort Lauderdale Food Not Bombs’ weekly food-sharing demonstrations and that the City had violated their First Amendment rights of  expressive conduct and expressive association. See Appellant’s Initial Brief, Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, No. 16-16808, 2017 WL 1076817 (11th Cir. Jan. 18, 2017). (They also argued that the law was unconstitutional and should be void because its vagueness violates the Due Process Clause of the Fourteenth Amendment. See id. at 52-58 (internal pagination).)

Two sets of individuals and organizations organized themselves to file amicus curiae (friend of the court) briefs, which the City opposed. Hence, the amici had to file motions to ask the Eleventh’s Circuit permission to file their briefs, which the court granted. One brief was submitted by Tracy Segal of Akerman LLP on behalf of eighteen Food Not Bombs groups from across the country. It argued that Judge Zloch’s Order had departed from established First Amendment principles regarding symbolic speech / expressive conduct and misapplied the Eleventh Circuit’s controlling precedent in Holloman ex rel. Holloman v. Harland, 370 F. 3d  1252 (11th Cir. 2004).

The other brief was submitted by Victoria Mesa-Estrada on behalf of Florida Legal Services, Inc., Latina & Latino Critical Legal (LatCrit) Theory, Inc., the Society of American Law Teachers, Inc., and myself. We argued that the district court failed: (1) to apply the symbolic speech / expressive conduct tests, as articulated by the Supreme Court in Spence v. Washington, 418 U.S. 405 (1974) (per curiam) and its progeny, to determine whether alleged expressive conduct obtains free speech protection; (2) to afford the plaintiffs the protection from “viewpoint discrimination” as articulated by the Eleventh Circuit in Holloman ex rel. Holloman, supra; and (3) to consider whether the City had violated the plaintiffs’ First Amendment rights to peaceably assemble in a public park.

Oral argument was held in Atlanta, Georgia on August 24, 2017 and are worth listening to, in part because of the distinctive panel who heard them: in addition to Eleventh Circuit Judge Adalberto Jordan, the panel included Eleventh Circuit Judge Gerald Bard Tjoflat, and the Honorable John E. Steele, U.S. District Judge for the Middle District of Florida, sitting by designation. The U.S. Senate confirmed President Obama’s elevation of Judge Jordan to the Eleventh Circuit in 2012, President Ford’s elevation of Judge Tjoflat to the Fifth Circuit in 1975, and President Clinton’s nomination of Judge Steele to the Middle District of Florida in 2000.

Judge Jordan’s opinion for a unanimous panel of the Eleventh Circuit was thus well worth the almost year-long wait for its publication and represents a consensus view on the doctrine of expressive conduct by judges appointed by both the Democratic and Republican parties and whose careers as jurists span almost fifty years.

The Eleventh Circuit’s Conclusion

As at least one commentator has noted, Judge Jordan’s opinion is nationally significant for the food-sharing cases because it is the first opinion by a United States Courts of Appeals to hold that “on this record [Fort Lauderdale Food Not Bombs’] outdoor food sharing is expressive conduct protected by the First Amendment.” Fort Lauderdale Food Not Bombs, No. 16-16808, 2018 WL 4000057, at 3.

Over the course of the twentieth century, the U.S. Supreme Court has found multiple activities to constitute “symbolic speech” (the phrase preferred by older cases) or “expressive conduct” (the recent usage). The Court has also assumed arguendo (for sake of the instant argument) that particular conduct was adequately expressive to obtain protection under the Free Speech Clause. Compare e.g., Clark v. Cmty. for Creative Non Violence, 468 U.S. 288, 293 (1984) (assuming without deciding that “overnight sleeping in connection with a demonstration at Lafayette Park is expressive conduct protected to some extent by the First Amendment”), with Texas v. Johnson, 491 U.S. 397, 403-06 (1989) (explaining why burning the U.S. flag is expressive conduct and discussing other forms of expressive conduct, including, inter alia (among others), wearing black armbands to protest the Vietnam War, sitting-in by African Americans to protest racial segregation, picketing for various causes, refusing to salute the U.S. flag, attaching a peace sign to the flag, and displaying a red flag).

Also, as intimated above in my brief critique of Judge Zloch’s Order, the Eleventh Circuit’s directly controlling precedent, First Vagabonds Church of God v. City of Orlando, Florida, 638 F.3d 756 (11th Cir. 2011) (en banc), assumed that the secular plaintiffs’ food-sharing demonstration in Orlando constituted “expressive conduct” and hence merited Free Speech protection. Similarly, in Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006), the Ninth Circuit noted the plaintiffs-appellants’ stipulation that “food distribution” was not “on its face an expressive activity.” Id. at 1032. Thus, as Judge Zloch’s Order made clear, a real risk existed that activists like those affiliated with Fort Lauderdale Food Not Bombs might be excluded from Free Speech protection in the current era, where a re-emerging movement has claimed the mantle of “Free Speech” to cover its “alternative” expressions of the old ideology of white supremacy. Compare Damien Gayle, Thousands March in ‘Free Speech’ Protest Led by Rightwing Figures, The Guardian (May 26, 2018) (reporting on a march in London organized by the “far-right English Defence League”), with Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43 (1977) (per curiam) (holding that Illinois must provide appellate review to deny a stay for an injunction against the National Socialist Party of America, which sought to parade in swastika-displaying uniforms without posting a $350,000 bond required to obtain a park permit) (cited in Fort Lauderdale Food Not Bombs, No. 16-16808, 2018 WL 4000057, at 16-17).

Thus, Judge Jordan wisely responded to the Ninth Circuit’s opinion in Santa Monica Food Not Bombs, which noted, “Whether food distribution can be expressive activity protected by the First Amendment under particular circumstances is a question to be decided in an as-applied challenge, should one be brought.” Santa Monica Food Not Bombs, 450 F.3d at 1032. And Judge Jordan’s opinion for the Eleventh Circuit makes clear that “outdoor food sharing is expressive conduct protected by the First Amendment.” Fort Lauderdale Food Not Bombs, No. 16-16808, 2018 WL 4000057, at 3. Thus, courts across the United States should similarly protect food-sharing activists whose political demonstrations feature an assemblage and context similar to that of Fort Lauderdale Food Not Bombs at Stranahan Park.

In Part II, I will summarize Judge Jordan’s contextual analysis, particularly how he explained the five circumstances that would lead a reasonable observer to view the plaintiffs-appellants’ food-sharing as conveying “some sort of message” and hence qualifying as expressive conduct protected by the Free Speech Clause.

For now, however, Judge Jordan’s opinion for the Eleventh Circuit should be celebrated by all food-sharing activists—and respected by all public officials who attempt to regulate the public sharing of food. Indeed, in my view, U.S. cities should cultivate, not deter, the organic solidarity expressed by public food-sharing demonstrations. As Fort Lauderdale Food Not Bombs member and individually-named plaintiff, Nathan Pim, said in a press release by plaintiffs’ attorneys Southern Legal Counsel, “We hope we are one step closer to something we’ve fought for over many years — simply being able to help people without being threatened with arrest by people who should be working with us.”


(For helpful comments on drafts of this post, I thank Jessica Biedron, John M. Kang, Lenora Ledwon, Stephen Lee, Nathan Pim, Ezra Rosser, Benjamin Waxman, Jeff Weinberger, and Brenda Williams. Any remaining errors, of course, are mine.)

Updates on Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale

On January 18, 2017, the plaintiffs in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, No. 16-16808, filed their Appellants’ Initial Brief .

On January 25, 2017, two amicus curiae (friends of the court) filed motions for leave to  file briefs in support of plaintiffs-appellants and urging reversal of the district court’s judgment in favor of the defendant:

On August 24, 2017, oral arguments were held in Atlanta, Georgia.

On August 22, 2018, the United States Court of Appeals for the Eleventh Circuit published its opinion, which reversed the district court’s final judgment in favor of the defendant’s motion for summary judgment, explained why Fort Lauderdale Food Not Bombs’ weekly demonstrations at Stranahan Park constituted “expressive conduct” protected by the Free Speech Clause of the First Amendment, and remanded the case to the district court so that the plaintiffs could advance toward trial.

Judge Zloch Opines that Publicly Sharing Food is Not Expressive Conduct

In his September 30, 2016 Order, United States District Judge William J. Zloch, of the Southern District of Florida, granted the defendant City of Fort Lauderdale’s motion for summary judgment and denied the plaintiffs’ similar motion on the basis that “Because the Court finds that Plaintiffs’ conduct is not protected by the First Amendment, the Court will find for Defendant. No disputes as to material facts prevent judgment in the City’s favor.” Id. at 29.

78 – Order Denying Plaintiffs Motion for Summary Judgment is a project of Marc-Tizoc González, Professor of Law at the St. Thomas University School of Law in Miami Gardens, Florida. Contact the author at or @marctizoc.

Prof. González has created to provide in-depth analyses of the judicial opinions that interpret the constitutionality and legality of “the food-sharing cases,” controversies that arise when activists challenge municipal ordinances that criminalize or otherwise regulate people who organize themselves to share food in public with people who are hungry.

Beyond the law, will aggregate and comment on journalism and social media regarding controversies that arise over sharing food in public.