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Thankfully, the latest ban to take effect—Philadelphia's, which the aptly named Mayor Michael Nutter implemented just last week—has drawn a legal challenge.
As the Nevada ACLU did in Las Vegas—and the national ACLU did in New York City in the case of the police beating of Ledoux's supporters—the Pennsylvania ACLU chapter finds itself challenging "burdensome restrictions on outdoor feeding programs."
While Mayor Nutter claims the purpose of the ban is to push all "homeless feedings indoors where it is supposedly safer," the state ACLU counters that the ban was put in place "not to protect the health of the homeless but instead to protect the city's image in a tourist area."
The suit claims the ban violates the Free Exercise and Free Speech Clauses of the First Amendment and Pennsylvania's Religious Freedom Protection Act. While no doubt true, to those claims I would add that the ban violates the Freedom of Assembly, a First Amendment right that my own research has demonstrated is inextricably intertwined with the provision of food and drink (a fact I noted when quoted in the Leschin piece).
A religious group may have separate First Amendment rights to feed the homeless as part of its protected religious mission, just as a group like Food Not Bombs may have separate free-speech rights if feeding the homeless is part of a larger "bake sales versus bombers" protest. But every American enjoys assembly rights separate and distinct from any religious or speech rights—something the Pennsylvania ACLU should make clear here. After all, the U.S. Constitution guarentees the right to assemble peaceably for any reason, while the Pennsylvania Declaration of Rights guarantees that "citizens have a right in a peaceable manner to assemble together for their common good."
Restrictions on feeding the homeless are unconstitutional, discriminatory, and wrongheaded. Courts should force cities to acknowldge that members of civil society have a right to help those in need, and that those in need have a right to obtain assistance outside of government channels.
Baylen J. Linnekin, a lawyer, is executive director of Keep Food Legal, a Washington, D.C. nonprofit that advocates in favor of food freedom—the right to grow, raise, produce, buy, sell, cook, eat, and drink the foods of our own choosing.