First Amendment

Federal Court: First Amendment Protects Feeding the Homeless—Sort Of

Referencing Shakespeare, the Bible, and American colonial times, a federal court rules in favor of a group's right to feed the homeless.

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SMG/ZUMA Press/Newscom

An activist group's weekly food-sharing events are constitutionally protected "expressive conduct" under the First Amendment, according to a federal court. The ruling invoked not just the Constitution but Shakespeare and the Bible.

At issue was a feud between the city of Fort Lauderdale, Florida, and the city's chapter of Food Not Bombs, a group that seeks to end both poverty and war. Members gather each week at a local park and share food with homeless people. But in 2014, the city passed an ordinance making it a lot harder to hold those events. The ordinance required a permit for public food distribution; in some areas, food-sharing was banned altogether.

Fort Lauderdale took the ordinance very seriously, to the point of arresting two pastors and a 90-year-old man for refusing to follow the restrictions. In February 2015, Food Not Bombs sued the city, claiming the ordinance violates the First Amendment. The U.S. District Court for the Southern District of Florida ruled in favor of Ford Lauderdale, but Food Not Bombs appealed.

In a ruling dated August 22, the U.S. Court of Appeals for the 11th Circuit handed the group a major victory.

Judge Adalberto Jordan's majority opinion stresses the form and context of the group's meals. Eating food with others is very different from eating alone, he writes: "Unlike a solitary supper, a feast requires the host to entertain and the guests to interact." Jordan backs that up by citing Macbeth:

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."

He then throws in some references to the Bible and the Pilgrims:

The significance of sharing meals with others dates back millennia. The Bible recounts that Jesus shared meals with tax collectors and sinners to demonstrate that they were not outcasts in his eyes. See Mark 2:13–17; Luke 5:29–32. In 1621, Pilgrims and Native Americans celebrated the harvest by sharing the First Thanksgiving in Plymouth.

By organizing weekly food-sharing events, he concludes, Food Not Bombs is trying to make a political point: that money spent on war should be used to end poverty instead. Thus, Jordan says, these events are protected speech under the First Amendment. "Providing food in a visible public space, and partaking in meals that are shared with others, is an act of political solidarity meant to convey the organization's message," he writes. And acts of "political solidarity" are meant to be symbolic:

History may have been quite different had the Boston Tea Party been viewed as mere dislike for a certain brew and not a political protest against the taxation of the American colonies without representation.

The 11th Circuit's ruling didn't strike down Fort Lauderdale's ordinance, but it did send the case back down to the lower court. Now, the district court will have to rule on whether Fort Lauderdale's ordinance actually violates the First Amendment.

While it's great that Food Not Bombs has a constitutional right to feed the homeless, it remains to be seen how this ruling will affect organizations that aren't trying to convey a political message. Many local governments have cracked down on feeding the homeless over the years. One would hope the 11th Circuit's ruling will force cities to repeal those discriminatory and unconstitutional restrictions. But the ruling doesn't recognize a universal right to voluntarily help people in need.

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  1. The lengths people will go to, to strive for an end they cannot reach by other means; and the lengths people will go to, to enforce their control freakery on other people. Is there anything government cannot do?

    1. People who make it hard to feed hungry people are assholes, in direct proportion to how desperate those people are for food.

  2. The First Amendment doesn’t have to, because the Ninth Amendment does.

    Everyone acts like the Bill of Rights stops at the Eighth.

    1. And skips the first prime number.

    2. Bingo, CE. The 9th includes more rights than there are stars in the firmament so long as the exercise of such rights do not interfere with the another’s property rights.

      Of course, “another’s property rights” do not mean society or the state.

  3. Food from me, but not from thee

    Without government, who would prevent us from feeding people in need by directly supplying it ourselves?

  4. Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    These protections and the fact that government cannot constitutionally ban anything without a change to their respective state or US Constitution. There is zero authority to ban feeding people that you want to associate with. Its not an enumerated power.

    1. I don’t think the Ninth applies to this case. Since it’s a local ordinance (and since, by definition, local jurisdictions are part of their respective states), I think the Tenth applies better. The Tenth reads:

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      While the Constitution limits the federal government to the principle of enumerated powers, states (and therefore also local jurisdictions) have what are called general police powers. That is, they can pass any silly, stupid or self-destructive law they like as long as they don’t infringe on an enumerated federal power while doing so.

      So they still can’t violate the First Amendment but if they hadn’t done that, the anti-food law would have been okay.

      1. Note that the text of the 9th does not specify the 10th supercedes it or that if there is a conflict, state power prevails over the exercise of individual liberty.

        Furthermore, the 14th incorporates all rights and any contention to the contrary is intellectual and logical hogwash.

        Moreover, the laws of Fort Lauderdale and the state of Florida can be voided upon another ground: the constitution guarantees a republican form of government and pursuant thereto the power to ban the feeding of the homeless is manifestly a power repugnant to a republican form of government as the only legitimate powers of a republican form of government are the protection of private property, the protection of free enterprise, and the corollary, the rejection of all communistic, progressive, socialist and do gooder legislation, including legislation predicated upon “ew, that’s dangerous.”

        1. From a legal perspective, you’re overstating things by rather a lot, Libertymike.

          While you are correct that the 10th does not supersede the 9th, the wording of the 9th can not alone be used as evidence of rights. The 9th was a sop thrown in to ensure that rights already recognized under common law could not get swept away merely because they were not part of the enumerated 1st thru 8th. Note that none of the lawyers who actually argued the case made mention of the 9th Amendment. The connection between this fact pattern and a pre-existing common law right would be tenuous at best.

          Re: the 14th amendment – lots and lots of legal scholars on both ends of the political spectrum would disagree with you. Maybe the 14th should have explicitly incorporated all the other enumerated rights (my view) – and maybe the 14th did implicitly incorporate some rights but not others (the current holding of the Supreme Court). But there is a clear argument that is internally consistent and intellectually honest to say that the 14th was (and maybe should still be) much more limited in scope. To dismiss those countering views as “hogwash” is unfair and, frankly, lazy. The burden is on those arguing for universal incorporation to articulate exactly how that interpretation is justified.
          con’t

          1. con’t>
            re: the republican form of government – That just won’t fly. A ban the feeding of the homeless is repugnant but there is nothing magical about a republican form of government that prohibits it. Republican forms of government are less prone to self-destruction and tyranny – but they are not immune to it. Note, by the way, that the defenders of the city law explicitly drew on your “protection of private property” argument when implementing the ban. They stomped all over the private property rights of the donors but they did so in the name of protecting the property rights of neighbors. I think their arguments were garbage but they were entirely consistent with the aims and powers of a republican form of government.

          2. Maybe the 14th should have explicitly incorporated all the other enumerated rights (my view)

            It didn’t have to since the Bill of Rights had already been declared by the Supremacy Clause to be the supreme law of the land.

            The burden is on those arguing for universal incorporation to articulate exactly how that interpretation is justified.

            By a plain reading of the text of the constitution, even without mentioning the 14th amendment. And if you must bring up the 14th, then its privileges and immunities clause is more than enough to incorporate the Bill of Rights.

            1. Uh, no. Prior to the 14th Amendment, it as very clearly understood that, while the Supremacy Clause does render the Constitution as the supreme law of the land, the exact wording of in the Bill of Rights made them restrictions on the federal government and not the States. There are many, many decisions confirming that understanding.

              A plain reading of the text of the Constitution (up to but not including the 14th) also establishes that document as a restriction on the federal government. The number of constraints enumerated against the States are remarkably small. They must, for example, have a republican form of government, they cannot impose interstate tariffs and a few others. The First Amendment, on the other hand, says only that “Congress shall make no law”. States could make any law they like.

              A plain reading of the 14th Amendment also does not support your view. An equally defensible interpretation is that Maine can outlaw some speech and Vermont outlaw different speech but that the Privileges and Immunities clause says that Maine must treat Vermonters the same way they treat their own citizens.

              Again, I think that States should be bound by the entirety of the Bill of Rights. But that is not now and never has been the case.

              1. First, the text of the 14th does not admit of any exceptions. If A and B want to feed C in the public square, the state of Florida cannot, consistent with the text, enact legislation to the contrary – even if it proffers a specious argument that the purpose of the law is designed to protect neighboring private property owners. IF John Binghan and company had intended to permit states the type of power you are defending, they would have so said, but they did not.

                Second, judicial deference to a statute that, on its face, interferes with the right of A and B to feed C, is the type of judicial activism that should be condemned.

                Third, the 9th does not contain any language limiting its scope to the federal government.

        2. the only legitimate powers of a republican form of government are the protection of private property, the protection of free enterprise, and the corollary, the rejection of all communistic, progressive, socialist and do gooder legislation, including legislation predicated upon “ew, that’s dangerous.”

          Where do you get that? A republic is basically anything but an autocracy/monarchy/dictatorship where there are elections and representatives and shit like that. Being a republic doesn’t mean that a country can’t be socialist or whatnot.

      2. Yeah, and just think how great life is now that we have panhandlers at every major intersection in town with signs that bemoan their untenable situation and pleas for help.

        That is definitely what the founders intended with the first amendment.

        Derelicts and incorrigibles at every corner demanding a hand out under protection of the First amendment.

        As for feeding the “homeless,” while well intentioned, it generally tends to worsen the problem. Consider San Trancisco. Once a beautiful city, now mired in human feces and carelessly discarded syringes, not to mention tent cities as far as the eye can see. Whatever happened to zoning regulations?

    2. Yeah, I’m not seeing what legal right anybody has to say “you cannot feed people”. Seems like an utterly pointless law that the court should have shot down post haste.

      1. Hey, if they want to feed the disheveled masses, let them open an soup kitchen at a fixed location. They can even offer free beds if they wish. But this crap of daily free picnics at the park are discouraging other people that also have a right to use the “public spaces” in peace.

    3. This is a local ban US constitution enumerated powers are not relevant. Most state constitutions are not set up the same way with limited powers. This is a municipal ban. Apart from limitations imposed by the 14th amendment applying the bill of rights to state and local governments and areas that are the exclusive authority of the federal government under the US constitution, a municipality regulate/ban on any subject matter unless it’s explicitly prohibited from doing so by state law.

  5. Why are we making it easier for illegals? They come here expecting to get fed by strangers. No wonder we have problems. Until we stop feeding the illegals, we can’t possibly have free movement of people because they’ll just wander around looking for a free lunch.

  6. While it’s great that Food Not Bombs has a constitutional right to feed the homeless

    Because…outcome?

    And as you said, they don’t have such a right…yet. That remains TBD. And it seems well within the police power of a locality to manage gatherings. There’s nothing on the face of the regulation that’s obviously unconstitutional. I didn’t read the opinion, but I suspect that it simply says the district court needs to entertain the possibility of a constitutional question.

  7. Where the hell is Ford Lauderdale? Fix the article, and find an editor. I’ve got spare time if you’re desperate. However, I won’t edit Shikha’s articles. I do have standards, albeit low.

  8. The first sentence of the second paragraph states “Fort Lauderdale, Florida”. If you don’t know where the hell Florida is I really cannot help you.

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