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 FoodSharingLaw.net, 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.”

c/s

(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.)

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