Performing Charity Is a First Amendment Right
Houston officials say they'll keep fining activists for feeding homeless people, calling it "a health and safety issue."
In July, Phillip Picone, a Houston activist, stood before a jury of his peers, charged with the heinous crime of feeding the needy.
Picone is one of several activists affiliated with Food Not Bombs (FNB), a volunteer group with chapters worldwide. Houston police have repeatedly cited FNB activists for distributing free food outside the city's downtown public library, based on a 2012 city ordinance restricting charitable food services. By the time Picone appeared in Houston Municipal Court, FNB members had received 45 tickets at $254 each, for a total of $11,430 in fines.
Houston is part of a national trend. The legal farce in that city is a particularly potent example of an ongoing tug-of-war that pits public order against the First Amendment right to perform charity as a form of expression.
In his 2016 book Biting the Hands That Feed Us, Reason Foundation Senior Fellow Baylen Linnekin noted that crackdowns on good Samaritans began spreading across the country during the first decade of the century. Reason has covered government suppression of food charities in Tampa, Orlando, Fort Lauderdale, Atlanta, Newark, Las Vegas, Charlotte, Philadelphia, and Kansas City. In the latter case, health officials poured bleach on food meant for the homeless in 2018.
Earlier this year, Houston designated a specific area—a police parking lot next to the city jail, it just so happens—for homeless services. But FNB and other groups had been operating outside the library with the city's consent since the 2012 ordinance was passed, and they argue that they have a constitutional right to continue doing so.
City officials disagree, describing the situation as "a health and safety issue." They have vowed to keep issuing citations until the activists stop.
All of which explains how Picone ended up in court. The Houston Chronicle reported that Picone's lawyer demonstrated the absurdity of the city's ordinance to the jury by displaying slices of cake. Under the ordinance, he explained, it was legal to give slices to five people, but six would be illegal if they were "in need." Houstonians can give slices of cake to as many housed people as they want.
The jury found Picone not guilty. He is now pursuing a federal civil rights lawsuit against Houston, arguing that the city violated his free speech and religious rights.
Activists like Picone have succeeded in other cases. In 2018, for example, the U.S. Court of Appeals for the 11th Circuit ruled that distributing food was "expressive conduct" protected under the First Amendment. That decision was a response to a lawsuit by the FNB chapter in Fort Lauderdale.
For FNB, the act of feeding people is a potent form of political speech. But in recent years, cities also have targeted Christian churches for similar charitable services, which they say infringes on their religious expression. Theologians might say that Jesus was talking about spiritual nourishment when he commanded Peter to feed his sheep, but many Christians take that mandate to mean physical care of people as well.
One church embracing that mission is Micah's Way in Santa Ana, California. Micah's Way is suing the city of Santa Ana for refusing to let it distribute food and threatening it with citations. The church argues that feeding the needy is intrinsic to the practice of its faith. It says the city's actions substantially burden its exercise of religion, violating the Religious Land Use and Institutionalized Persons Act.
The U.S. Justice Department agrees with the church's interpretation of Christian duty. In May, the department filed a statement of interest in the church's lawsuit, arguing that feeding the needy is "unquestionably religious exercise" protected by federal law. It sharply attacked Santa Ana's argument that distributing food and drinks was merely "incidental" to the church's practice.
The government has no right to bully good Samaritans. And when its bullying conflicts with the religious duty to perform acts of charity—or the simple human duty to look after one another—reasonable people, like the jurors who acquitted Picone, see that the state's laws look awfully small in comparison.
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The first seems to be quite unpopular with many government types now a days. Not as much as the second , but, it’s getting closer.
I don’t think feeding the hungry is “expressive conduct” in any meaningful way. What does it express, other than “we want to do this thing”? May as well say robbing a rich person is expressive conduct because it shows you believe they aren’t paying their fair share.
The religious argument seems better.
Seems like providing them with tainted food to repel them would make for strictly expressive conduct.
Caveat emptor
The issue, of course, is that feeding the homeless — draws more homeless to the area. Unless they are also willing to handle the increased issues that more homeless cause, they should cease.
Your argument is that there are x number of homeless people in a geographic area, now more are moving from one part of a geographic area to another, and this travesty should mitigate 1A?
How is this different in effect than a church serving the homeless inside, which also attracts homeless people?
Imagine what they would do to Jesus.
The public was not obligated to financially support the homeless in Jesus’ day. His ministry did not cause added cost to anybody.
That is very much not the case now.
The issue isn’t feeding the homeless or charity. It is over the misuse of a shared public resource, creating a hazard. He also wouldn’t have been able to perform a concert outside the library without pre arranged permits. This is common for public resources.
Likewise with the uptick in violence seen by the homeless, not everyone wants their shared public spaces to be flooded with that kind of safety risk.
The property was already taken from the public. The public gets to vote and decide on how it is to be used. Public property is not free use for whatever someone decides they want to do. It has always had rules and regulations set by representatives of the people.
Would love to see Reason attempt to defend eco protestors on public roadways as a valid use with similar appeals to emotion.
They did so as part of their glowing coverage of the antifa and marxist BLM riots. They saw no problem with people milling about on the highway in on the streets; blocking emergency vehicles and uninvolved commuters as long as it was done in the name of the revolution.
Yeah, Reason’s idea of a tragedy of the commons is actually the inverse definition or celebratory parallax.
Ranchers herding cattle on their own land, releasing CO2 into the air (or not/offsetting and charging more) is a tragedy of the commons because lab grown meat would allow that land to be “returned to nature”, but arson, defacing storefronts, and people getting stabbed to death on a public street is just how shared property in a democracy mostly peacefully works.
While true, it’s worth noting that the jurisdictions in question are not making the “time, place and manner” argument in their legal filings. I believe they’re not doing so because it would be a hands-down loser since that’s not the way these restrictions have been enacted or enforced in these particular cases.
No, the reason they are not doing this is because they have an even stronger argument: providing food isn’t speech.
They only need the “time, place, manner” argument if SCOTUS rules that providing food is actually speech.
It’d be ironic if providing food is speech but baking a cake is not.
‘The government has the power to impose reasonable regulations on the the time, place, and manner in which First Amendment rights are exercised.’
What the f$% are you talking about? You officially get most idiotic comment of the day.
‘The right of the people to peacefully assemble’ is quite literally in the First Amendment. The purpose of the First Amendment is so the government can’t say whenever they feel like it that ‘now is not the time.’
I take it Charity is no longer one of Trump’s favorite strip dancers.
The libertarian religious argument is: “we value The Almighty Dollar.” The mystical, spiritual and looter religious argument is: “we value the Almighty Dollar somebody else took the trouble to earn.”
Left wing hates this because it undermines the role of government as the grand provider of all things in society.
Right wing hates this because it undermines the role of government as the ultimate source of order in society.
Both sides (both sides!) hate this because homeless people are smelly and embarrassing and they just need to be hidden away from polite society.
That’s a good summary.
Brandy. Where do you live? I feel like setting up a charity for homeless in front of your house. Don’t be a hypocrite now.
These people can rent their own property of they want to hand out things as charity. Public areas are set to the rules of the community, not each random individual.
Performing Charity Is a First Amendment Right
It would be nicer if the leading libertarian publication would try to stick to some semblance of journalistic standard. There was a specific thing this charity (anti-nuclear power) group was doing, and obfuscating that by taking their conceptual mission, and papering over the specific act they are doing doesn’t do you or the anti-nuke group any favors.
One may still agree that they have a RIGHT to feed the homeless– in the specific manner in which they were performing that charity– but at least describe the activity clearly: “distributing free food outside the city’s downtown public library”. So the question to be asked, is “distributing free food outside the city’s downtown public library” a “first amendment right”? I would argue “no”, just as helping smuggle immigrants across the border isn’t a “first amendment right”.
Both actions can easily be defined as “performing charity” but are clearly not expressive activity, and no court in the land would consider it so.
I charitably donated a few rounds at several hundred fps into the ground right in front of their feet as an expressive activity signifying that they should go away.
So, they had city consent, but at some point the city changed its mind.
Why is that?
I smell Soros’ hand in this article.
Anyone who thinks feeding bums is a right should visit San Francisco, or better yet, go live there, where he’ll be able to see the results of his favored policy.
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Some religions regard charitable activitiy as an obligation hence for observant followers of that religion, such activity is an exercise of religion under 1A. You may not like it, but it’s a legitimate argument.
I’d much rather have charity than gov-guns showing up to STEAL for criminals under law. At least when the homeless use guns in an actual charity environment they get arrested and are then hidden from society for societies own safety.
All you dancing around the charity brings in homeless are just sharpening a double-edged sword for yourselves. If that’s how you feel join an HOA or gated community.
Fine. Let’s privatize as many “public” spaces as possible. Users and guests can then visit at the pleasure of the owner(s). No more BS about how unfettered behavior must be tolerated in “public”.
True. I see so many pigeons flying around taking a shit in the public airways. They’re not being charged with trespassing. Privatize the air. It will also force joggers to pay up for their pretentious public exercising.
Comparing creatures with no rights with humans?
Not sure this is the owning you think it is.
There are all sorts of food trucks and pop-ups serving the microbrewery community here that have Health Department’s approval Let the do-gooders comply, rather than argue handing out bologna sandwiches is expressive conduct
Yeah and school lunches too. You can’t just pack school lunches and hand them to your kids without the Health Departments approval!!!! /s
Maybe it just wasn’t ever the governments job to *approve* of every facility in which a sandwich ever made and it’s hyper authoritarianism is exactly part of the curse of modern governing/dictating.
I suppose Houston would have put Mother Teresa in handcuffs.
She should actually have gone to prison for the pain and suffering she caused.
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