Posted July 4, 2009

Orlando Food Not Bombs continues to share food with the homeless and hungry on a regular schedule despite the problems--arrests and police harassment--it has experienced from city authorities. OFNB has been sharing food in downtown Orlando every Wednesday since January 2005 (with breakfast at the same location on Mondays added in the spring of 2008). In July 2006, the Orlando City Council passed an ordinance that sought to severely limit the ability of groups, OFNB and other religious and secular organizations, to share food in more than three dozen public parks (what the ordinance calls the Greater Downtown Park District). These parks include Lake Eola Park, where OFNB shares, which the city considers its signature park (the fountain in Lake Eola appears on the City seal) and its "crown jewel" park (a term the city has used).

The ordinance limits any group that holds food sharings that attract 25 or more people (including those serving the food) to two permitted food sharings per park per 12-month period. (The City seems oblivious to the fact that people need to eat every day, not just two times a year.) Violation of the ordinance can carry up to a 60-day jail sentence and a $500 fine. The City has offered several rationales for the ordinance, claiming that food scraps left on the ground could be harmful to birds and squirrels; claiming that the food sharings threaten public safety (crimes it alleges are committed by homeless individuals attracted to the food sharings), public health (litter and excess garbage) and cause "overuse" of City parks. (The OFNB sharings take place in the Lake Eola picnic area, which was created specifically for such activities).

Many observers contend that the City's rationales for the measure are, in reality, ugly and malignant. The City doesn't want homeless people downtown because it considers them unsightly, annoying and bad for business and an impediment to the local social/political/economic elite's goals of downtown redevelopment and gentrification. The City sees profits as being more important than people, especially poor and marginalized people, and their basic human needs, such as food and shelter. By seeking to drive the homeless and poor from downtown Orlando, the City is trying to create a system of apartheid, based on socio-economic status, that seeks to deny the poor and homeless dignity, respect, equal treatment and equal access to public amenities such as parks. ("Apartheid," literally "apartness," is an Afrikaans word that was used in South Africa when it was dominated by the white minority to describe a system in which the non-white majority was confined to a small part of the country's land and forced to live in grinding poverty due to racism and attendant inequalities in economic and political power.)

In response to the ordinance, OFNB, along with another group--The First Vagabonds Church of God (a homeless ministry pastored by Brian Nichols, a formerly homeless man), filed a federal lawsuit in October 2006 against the City. The City may have thought that its blatant attempt to institutionalize classist and discriminatory policies against the poor and homeless would be acceptable to the court but it was proven wrong. On Sept. 26, 2008, Orlando Food Not Bombs won a smashing victory against the City when federal Judge Gregory Presnell ruled that the ordinance violated OFNB's right to free speech under the First Amendment since its food sharings are EXPRESSIVE conduct, carried out to convey a political message. As the Judge noted in his ruling,

"Notwithstanding their diffuse political views, all OFNB members share in OFNB's core belief: that food is a right which society has a responsibility to provide to all of its members."

"We [share food] in public spaces, such as parks, because we believe that space should be reclaimed for the use of everyone, not just the privileged. We are an activist collective and humanitarian group that opposes the poverty, inequality, violence, war and militarism, prejudice and oppression, and environmental destruction that make groups such as ours necessary."

As Judge Presnell further noted in his ruling:

"Rather than address the problem of homelessness in these downtown neighborhoods directly, the City has instead decided to limit the expressive activity which attracts the homeless to these neighborhoods. While the Ordinance may very well accomplish the goal of diminishing the number of homeless in the Thornton Park and Lake Eola neighborhoods, the restriction clearly prevents OFNB from communicating its Constitutionally protected speech at a meaningful location [a public park] which, from time immemorial, has been the traditional forum for free speech. Although some incidental restrictions on First Amendment freedoms must be tolerated, the Court concludes that the restriction here goes too far."

The Court's ruling has an impact that goes far beyond Orlando. It blazes a new path in holding that food sharings done for political reasons are an expressive activity that should enjoy First Amendment protection. This ruling will benefit other groups around the country that have run into problems with local authorities for the horrendous "crime" of trying to alleviate the pressing social problem of hunger.

"This is the first time anywhere in the U.S. a judge has ruled that sharing food with hungry and homeless people in public spaces is expressive conduct protected by the First Amendment," said Jacqueline Dowd, the lawyer representing OFNB and founder of Legal Advocacy at Work, a non-profit law firm that provides free legal help to poor and homeless people in Central Florida. (The area's homeless population is estimated to be 9,000, with about 2,000 shelter beds available on any given night. For news on poverty and homelessness issues, please visit Dowd's blog, The 13th Juror.)

[Note: Emphases in the following paragraphs have been added by the author.]

In his ruling, Judge Presnell demolished the City's claims about the adverse impact of food sharings:

"The City presented evidence at trial that crime in downtown Orlando increased slightly from 2005 to 2006....However, the City made NO showing that any of this crime was related to large group feedings....There was NO evidence presented of crimes committed on the days of the feedings, in the immediate vicinity of the feedings or by the people who participated in the feedings. Furthermore, even if there was a connection between the feedings and crime, there is NO evidence that moving the feedings to different parks around the City would lessen the amount of crime."

"Similarly, there was NO evidence presented that there is any problem with littering or garbage in the parks, let alone one connected to group feedings," the Judge continued. "In fact, the evidence presented shows that OFNB does not use disposable items at their events, that they clean up when they are done and that they leave the park cleaner than it was when they arrived." The Judge also noted that "as to the City's desire to prevent crowding, there is NO evidence [presented by the City] that the parks in the GDPD are being overused."

After addressing those issues, the Judge dissected what he called the City's

"real, though unstated, reason for the ... adoption of this ordinance: re-distributing the putatively negative socio-economic effects of the homeless dispersing into surrounding neighborhoods after food sharing events; in short, DISCOURAGING THE HOMELESS FROM CONGREGATING IN DOWNTOWN ORLANDO, and more particularly, ... Thornton Park and Lake Eola...."

Two months after the Judge's groundbreaking ruling, the City announced that it would continue to uphold its image of hostility to the homeless and downtrodden and would continue to waste tens of thousands of dollars in public money that could be put to better use, such as helping people, by appealing the Judge's ruling. Oral arguments in front of the judges on the 11th Federal District Court of Appeals in Atlanta will be heard in November.

Jacqueline Dowd is cautious about her clients' chances (the First Vagabonds Church of God is still represented by the American Civil Liberties Union of Florida although OFNB severed its relationship with the ACLU after the initial ruling). "Although I believe we have a solid case, it's hard to predict what will happen at the appellate level," she said. Dowd noted that the idea of expressive conduct as speech deserving constitutional protection recently received another boost in a federal ruling in Seattle in which the court threw out an ordinance against street performers on the grounds that it violated the First Amendment. In the meantime, thanks to the ruling, OFNB continues to be able to share food without any interference from the City.

ORLANDO FOOD NOT BOMBS vs. THE CITY OF ORLANDO:
THE SCORECARD: OFNB, 10--THE CITY, 0

• In March 2007, three OFNB members were given parking tickets by the Orlando police while unloading food at the park. Dowd was able to get two of the tickets thrown out by the court. (The third person chose not to participate in the appeal process.)
• In April 2007, OFNB member Eric Montanez was arrested for violating the ordinance after two masked cops in a black SUV with tinted windows videotaped him ladling out stew 30 times. OPD used eight officers to apprehend this nefarious evildoer. The cops even took a sample of OFNB's delicious vegan stew as evidence. Montanez, represented by Dowd, was acquitted at his jury trial.
• In June 2007, six members of OFNB were arrested for violating a city noise ordinance by drumming too loudly during a protest against the food-sharing ordinance outside a campaign fundraiser for Orlando Mayor "Buddy" Dyer. Charges against one person were dropped; the other five, represented by Dowd, were acquitted at their jury trial.
• In September 2008, Federal District Court Judge Gregory A. Presnell ruled in First Vagabonds Church of God et al. vs. City Of Orlando that the ordinance was unconstitutional.
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