Eleventh Circuit restricts feeding homeless In Orlando City Parks

by JT Orlando

In a blow to efforts to help the homeless nationwide, the Eleventh Circuit Court of Appeals has ruled in favor of the City of Orlando’s efforts to stop feeding the homeless in city parks. The decision yesterday reversed a lower court ruling that determined that the city’s ordinance banning the weekly feedings violated the plaintiff organizations’ rights to free speech and free exercise of religion. In short, the Eleventh Circuit determined that Orlando’s desire to keep riff-raff out of its parks outweighed the societal value of feeding the homeless.

The organizations that originally sued the city, First Vagabonds Church of God and Orlando Food Not Bombs (“OFNB”), contended that their act of feeding homeless people each week in Orlando’s iconic Lake Eola Park constituted advocacy of homeless rights that is protected by the First Amendment’s guarantee of free expression. The church in addition argued that the feedings were a ministry, and the city’s ordinance impermissibly restricted their free exercise of religion as guaranteed by the First Amendment and applied to the states (and municipalities thereof) by the Fourteenth Amendment. But in each case, the Eleventh Circuit disagreed with the plaintiffs’ assertions, ruling essentially that (1) it wasn’t clear that the feedings were sufficiently “expressive” to invoke the First Amendment; (2) the ordinance was a reasonable, neutral limit on use of the parks, not rising to the level of a restriction on the practice of religion; and (3) that the ordinance wasn’t unduly vague, discriminatory, or arbitrarily applied.*

The City appeals the district court’s conclusion that the Ordinance violates the Free Speech Clause, as applied to OFNB; the district court thought that the Ordinance regulates expressive conduct but does not further a substantial government interest. In the circumstances of this case, the feeding Ordinance regulates no protected expressive conduct; we cannot agree with the district court’s decision.

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We accept that OFNB had the requisite expressive intent, but we believe that the feedings in this case present at most an ambiguous situation to an objective reasonable observer; the expressive nature of the conduct is not “overwhelmingly apparent.” We therefore cannot conclude that the likelihood is great that a reasonable observer would understand OFNB’s conduct of simply feeding people to be truly communicative.

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[I]t is far from irrational for the City to conclude that an overall reduction in the wear and tear of its park resources will result from rotating the park’s frequent large users among all available parks in the District. Although more effective means might be available to the City to accomplish its goal of park preservation, it is not for federal courts to judge the wisdom or effectiveness of an ordinance on rational basis review; we must uphold the law even if there is an “imperfect fit between means and ends.”

This is just another salvo in the long, sad history of governmental efforts to rid their communities of the homeless by throwing them out, rather than addressing the root causes — economic, social, and cultural — of the homelessness problem. It’s not unlike BP’s efforts to cosmetically cover up the effects of the Gulf oil spill rather than work harder to stop the flow of oil that’s causing the spill in the first place. And understandably, homeless advocates are up in arms over this ruling.

“These are people with faces and names and families and stories,” said P.J. Charles, executive director of Straight Street Orlando, a Christian group that feeds and ministers to the homeless at Lake Eola Park on Tuesday evenings. “Some of them are veterans. Some of them are hard-working blue-collar folks, and some are families broken apart by the economy. … In the City Beautiful, what’s more beautiful than human beings helping human beings?”

Jacqueline Dowd, an attorney representing Orlando Food Not Bombs, called Tuesday’s ruling a great disappointment. “The city allows a farmer’s market here that sells food,” she said, “but they have a problem with giving the food away?”

The issue has become a contentious one across the country. This month the National Law Center on Homelessness & Poverty and the National Coalition for the Homeless issued a joint report, citing laws in Orlando, Sarasota, Fort Lauderdale, West Palm Beach, Miami and Gainesville that make food-sharing with the homeless difficult, if not illegal. And those were just the cities in Florida.

“We take the position that the right to food is a basic human right,” said Karen Cunningham, legal director at the National Law Center, which had filed a brief supporting opponents of the restrictions. “More people will undoubtedly go hungry, even though there are churches and other organizations willing to share food with them. Particularly in this difficult economy, restricting people’s ability to help is just a terrible response to the community’s discomfort with the homeless.”

So now the judiciary is complicit in sweeping the issue under the rug, instead of trying to solve the problem at its source. As a liberal who firmly believes that government and, indeed, society exists not only to protect its citizens but to help those among us who are less fortunate, I’m outraged both by the Eleventh Circuit’s ruling and by the City of Orlando’s callous, selfish ordinance. As someone who was out of work for nearly two years, regularly wondering whether I might end up homeless myself, I have seen firsthand the plight of those who cannot care for themselves. This decision makes it even harder for those who want to help to do so, justified by nothing more than a desire by the privileged class to keep “undesirables” out of public parks. It’s unnecessary, it stinks, and it contradicts the very foundations of American political philosophy, wherein all of us are guaranteed the right to life, liberty, and the pursuit of happiness.

But I guess if you’re homeless, your rights don’t matter … at least not to the majority of the Eleventh Circuit panel, nor to the City of Orlando.
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* Those interested may read the other arguments, including the vagueness issue, in the opinion itself.