Feeding the Homeless in Public

The Eleventh Circuit has upheld an ordinance that tightly restricts the act of assembling in city parks to feed the homeless.  The case is First Vagabonds Church of God v. City of Orlando.

The Orlando ordinance was challenged on both religious free exercise and free speech grounds.  Under the Free Speech Clause, symbolic conduct is covered where the actor has an intent to convey a message and an audience is reasonably likely to understand that a message is being conveyed.  The message does not have to be clear, articulate, or even coherent.  As the court said, “in determining whether conduct is expressive, we ask whether the reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004). "This inquiry is an objective one."

The court concluded that feeding the homeless in the public parks did not satisfy this standard:

We accept that [plaintiffs] had the requisite expressive intent, but we believe that the feedings in this case present at most an ambiguous situation to an objective reasonable observer; the expressive nature of the conduct is not “overwhelmingly apparent.” We therefore cannot conclude that the likelihood is great that a reasonable observer would understand OFNB’s conduct of simply feeding people to be truly communicative.

There was some evidence in the record that police, the mayor, and others recognized that the church was feeding the homeless at least in part to make a political point -- i.e., that society has an obligation to feed its homeless and hungry.  Moreover, the Supreme Court has (albeit sometimes grudingly) accepted that a wide variety of conduct "counts" as expressive -- including flag burning, cross burning, stripping, and sleeping overnight on the National Mall.  While it is true that there must be limits to the principle that conduct may be perceived and treated as expressive activity, under the circumstances it seems a reasonable observer could well have discerned a political, social and religious message.  Although the court did not hold that feeding the homeless in public could never be deemed expressive, the tenor and holding of its decision create an important precedent for limiting public feeding as a form of political demonstration.    

By the way, the court's limited notion of what "counts" as expressive conduct stands in contrast to and in tension with the courts' increasing willingness to accept that "government speech" is present in public forums even when it is far from clear that a reasonable observer would perceive some "overwhelmingly apparent" message.  The display of a Ten Commandments monument (along with other works) in a municipal park comes to mind.  (See Pleasant Grove City v. Summum (2010).  Is the government speaker required to make the same showing as a private speaker that its message is (a) intended and (b) likely to be understood by a reasonable observer?