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The post below was published on Wednesday, September 15th, 2010 at 9:18 AM.

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En Banc Eleventh Circuit: Hope For The Homeless

Is feeding the homeless expressive conduct under the First Amendment?

Orlando has an ordinance that requires a permit to conduct large group feedings downtown and limits permits to two per year per group or organization. The First Vagabonds Church of God and Orlando Food Not Bombs both challenged the ordinance in federal court on various grounds. The district court rejected various claims but held in the church’s favor on its free exercise claim and OFNB’s favor on its free speech claim.

On appeal, the Eleventh Circuit issued this decision.

Examining whether feeding the homeless constitutes expressive conduct, triggering free speech protections, the circuit court held it does not. The court explained:

[J]ust feeding people in the park is conduct too ambiguous to allow us to conclude that a great likelihood exists that an objective reasonable observer would understand that the feeders are trying to convey a message. Without the assistance of explanatory speech (T-shirts, buttons, banners, and so on), an objective reasonable observer would not know whether the group feeding was a family having a reunion, a church intending to engage in a purely charitable act, a restaurant distributing surplus food for free instead of throwing it away, or an organization trying to engage in a form of political speech.

Some who live in Florida cities where great numbers of homeless persons congregate in various locations, including parks, might find that view a bit difficult to accept, at least in terms of whether what is going on when the homeless are being fed is recognizable for what it is. Whether the conduct’s recognizability amounts to expressive conduct for constitutional purposes is perhaps another matter.

From its view, the court concluded that, under the circumstances of the case, “the conduct of simply feeding people” was not expressive conduct for First Amendment purposes.

The circuit court also rejected the free exercise claim, holding that the ordinance was a neutral law of general applicability that served a rational purpose, as well as challenges for vagueness, lack of equal protection, and violation of Florida’s Religious Freedom Restoration Act.

But the case is apparently not over. As reflected by this order, the full court has voted to rehear the case en banc, and as this follow-up order shows, the en banc court will focus on the free speech claim.

This post thus ends where it began: Is feeding the homeless expressive conduct under the First Amendment? We will see.

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