Is sharing food an "expressive" behavior protected by the First Amendment? And if so, is it expressive enough to supersede a city regulation? Attorneys for the City of Orlando and the activist group Food Not Bombs will be in Atlanta on Feb. 15 to debate those questions before a federal appeals court – again – in a rare rehearing of a case well into its fifth year.
The dispute between the city and the activist group stems from a controversial "public feeding" ordinance enacted in 2006 banning the sharing of food with 25 or more people within a two-mile radius of City Hall. The ordinance was challenged soon afterward in federal court by Food Not Bombs, which provides vegetarian meals for the homeless twice a week at Lake Eola Park, and the First Vagabonds Church of God, a "ministry by the homeless for the homeless." In September 2008, Judge Gregory Presnell declared the ordinance unconstitutional, ruling that it violated the group's First Amendment right to free expression. The city then appealed to the 11th U.S. Circuit Court of Appeals, which has jurisdiction over Florida, Georgia and Alabama, and in December 2009 the court ruled in the city's favor, arguing that despite the stated political aims of Food Not Bombs, the food sharings did not communicate constitutionally protected "political speech" to the "objective, reasonable observer."
With the decision to hold a rehearing, however, the court is basically starting over with the case, meaning that Judge Presnell's 2008 ruling still holds as the supreme decision on the ordinance. Therefore, Food Not Bombs is serving at Lake Eola Park on Monday mornings and Wednesday evenings per its regular schedule.
On Feb. 15, each side will get only 20 minutes to argue its case in what is called an en banc hearing, meaning that all 12 judges of the district court will be present, rather than the three-judge panel that is typically tasked with reviewing appeals. Such an occurrence is extremely rare – of the 8,165 cases decided by appeals courts last year featuring oral argument, only 37 were through en banc hearings.
The city declined to comment on the case, but based on a briefing document obtained by the Weekly, Orlando attorney David King will argue on behalf of the city that the ordinance "regulates only conduct, not speech."
"The ordinance was enacted to serve the legitimate public purpose of park regulation, including distributing the impacts of park usage among the city's neighborhoods," the city's brief states. "The incidental limitations on [Orlando Food Not Bombs'] conduct, even if that conduct has an expressive component, are justified."
Since 2006, the city has spent $148,611 on outside legal representation for the case, a figure that does not include the salary of the city's in-house attorney, Mayanne Downs. City spokeswoman Cassandra Lafser says that if the city had not challenged Presnell's ruling, it would have had to pay for Food Not Bombs' legal fees, which would have brought the cost of the case to the city up to $234,544.
Food Not Bombs' attorney Jacqueline Dowd was not available for comment by press time, but in light of the court's first decision and a brief submitted to the court last year, she will have to convince the court that the feeding ordinance places more than just "incidental" limitations on the group's First Amendment rights, that Food Not Bombs' sharings are a form of political expression evident to an outside observer, and that the homeless are disproportionately affected by the ordinance.
Despite the city's contention that the ordinance "applies equally to everyone, wealthy mansion-dwellers and homeless alike," local activist Ben Markeson, who participates in the weekly sharings, disagrees, arguing that the true aim of the ordinance is to expel the homeless from downtown. "I seriously doubt that the city would swoop down to arrest the preschool teacher for handing out sandwiches to more than 25 kids," he says.
In the concluding remarks of the brief, Dowd echoes Markeson's charge: "[T]he city seeks to exclude people it views as unsafe, unsanitary and displeasing based on generalized, unsubstantiated prejudices and fears rather than on any legitimate government interest."