Eleventh Circuit Grants En Banc on Orlando's Prohibition of Feeding in the Parks

An Orlando, Florida Ordinance requires a permit for a "large group feeding" in a public park, and further provides that:

The Director of Families, Parks and Recreation or his/her designee shall issue a Large Group Feeding Permit upon application and payment of the application fee as established by the City. Not more than two (2) Large Group Feeding Permits shall be issued to the same person, group, or organization for large group feedings for the same park in the GDPD in a twelve (12) consecutive month period.

The Ordinance was challenged by the First Vagabonds Church of God and the nonprofit group Food Not Bombs, with the district court ruling in favor of the Church on its free exercise claim, in favor of Food Not Bombs on its as-applied free speech claim, and permanently enjoined the Orlando from enforcing the Ordinance against Plaintiffs.  The Eleventh Circuit reversed in an Opinion entered in early July, over a vigorous dissent by Judge Rosemary Barkett.

Barkett wrote:

The members of Orlando Food Not Bombs (“Food Not Bombs”) began conducting weekly demonstrations in 2005 at a public park located in the heart of downtown Orlando in order to draw attention to society’s failure to provide food to all and express their opposition to war. They did so by displaying signs and wearing buttons and t-shirts with the Food Not Bombs’ logo and anti-war messages while simultaneously distributing free food to hungry and homeless persons. . . . .  this conduct constitutes expressive conduct entitled to First Amendment protection . . . .

Barkett distinguished Rumsfeld v. FAIR, on which the majority relied, and also considered the actions as a whole of Food Not Bombs rather than merely the handing out of food.  Barkett argued that a reasonable person viewing Food Not Bombs’ demonstrations would observe that they

• take place every week,
• at a centrally located public park,
• in an affluent neighborhood,
•  are visibly run by a group whose name itself, Food Not Bombs, conveys an unmistakable message,
• include activists holding signs or banners and wearing t-shirts and buttons to reinforce the group’s central Food Not Bombs message, and
• involve the distribution of food to the hungry and homeless in accordance with Food Not Bombs’ purpose.

A majority of the Eleventh Circuit judges have voted to grant en banc review, indicating that Judge Barkett's views will be seriously entertained by the full court.

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