[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 12, 2011
No. 08-16788 JOHN LEY
CLERK
________________________
D. C. Docket No. 06-01583-CV-ORL-31-KRS
FIRST VAGABONDS CHURCH OF GOD,
an unincorporated association,
BRIAN NICHOLS,
ORLANDO FOOD NOT BOMBS,
an unincorporated association,
RYAN SCOTT HUTCHINSON,
BENJAMIN B. MARKESON,
ERIC MONTANEZ,
ADAM ULRICH,
Plaintiffs-Appellees-Cross Appellants,
versus
CITY OF ORLANDO, FLORIDA,
Defendant-Appellant-Cross Appellee,
NATIONAL LAW CENTER ON
HOMELESSNESS & POVERTY,
NATIONAL LEGAL FOUNDATION,
Amicus.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(April 12, 2011)
Before DUBINA, Chief Judge, TJOFLAT, EDMONDSON, CARNES,
BARKETT, HULL, WILSON, PRYOR, MARTIN and BLACK, Circuit Judges.*
PRYOR, Circuit Judge:
This appeal presents the question whether a municipal ordinance that limits
the number of feedings of large groups that any person or political organization can
sponsor in centrally located parks violates the First Amendment. A political
organization, Orlando Food Not Bombs, contends that an ordinance that, as
applied, restricts the frequency of its feedings of homeless persons in any park
within a two-mile radius of the City Hall of Orlando, Florida, violates the Free
Speech Clause of the First Amendment. The City of Orlando enacted the
ordinance to spread the burden that feedings of large groups have on parks and
their surrounding neighborhoods. Orlando Food Not Bombs argues that it has a
right under the First Amendment to conduct feedings of large groups in any park as
often as it likes. We assume, without deciding, that the feeding of homeless
*
Judge Stanley Marcus recused himself and did not participate in this decision. Judge
Susan Black continued to participate in this decision after she assumed senior status. 28 U.S.C.
§ 46(c).
2
persons by Orlando Food Not Bombs is expressive conduct protected by the First
Amendment, but we uphold the ordinance of the City of Orlando both as a
reasonable time, place, or manner restriction of speech and as a reasonable
regulation of expressive conduct. The judgment of the district court is affirmed in
part and reversed in part, and the permanent injunction against enforcement of the
ordinance is vacated.
I. BACKGROUND
Lake Eola Park, located in the heart of downtown Orlando, Florida, is the
signature park of the City and is featured on the seal of the City. Lake Eola Park is
also one of 42 parks located in the Greater Downtown Park District, which is the
area within a two-mile radius of City Hall. Orlando, Fla., Code § 18A.01(24).
Orlando has a total of 108 parks in the entire City.
In 2005, Orlando Food Not Bombs, a group of political activists dedicated to
the idea that food is a fundamental human right, began distributing free food at
Lake Eola Park every Wednesday at 5:00 p.m., and First Vagabonds Church of
God, a religious organization of about 40 members, most of whom are homeless,
began conducting weekly services that included group feedings at Lake Eola Park.
The Church later moved its services to Langford Park, which is also in the Greater
Downtown Park District. In 2008, Orlando Food Not Bombs added a second
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weekly feeding at Lake Eola Park on Mondays at 8:00 a.m. The free feedings
ordinarily attracted between 50 and 120 people. After Orlando Food Not Bombs
began distributing food at Lake Eola Park, residents of the surrounding
neighborhoods complained to the City about the conduct of people who disbursed
into the neighborhoods after the feeding events.
In response to the complaints, the City held public hearings and enacted an
ordinance to regulate feedings of large groups at central public parks. The
ordinance required sponsors of feedings of large groups within the Greater
Downtown Park District to obtain a permit, and the ordinance limited the number
of permits that a permitee could obtain for any one park to two a year. Id. §
18A.09–2. The ordinance defined a “large group feeding” as “an event intended to
attract, attracting, or likely to attract twenty-five (25) or more people[] . . . for the
delivery or service of food.” Id. § 18A.01(23).
The Mayor of Orlando, John Hugh Dyer Jr., testified that the ordinance was
enacted as an attempt to “be fair to individual neighborhoods” by distributing the
large group feedings among the various city parks. A city official testified that the
ordinance “was primarily intended to help broaden the burden across downtown,”
and a city record established that the ordinance was enacted to make the burdens
placed on public parks “more manageable with advance notice and regulation
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through a permit system.” Lisa Early, the Director of Families, Parks, and
Recreation for the City, testified about the overuse of Lake Eola Park and
explained that there were other parks with large green spaces that had the capacity
to be used more often. Early also testified that the ordinance achieved the
objective of lessening the burden placed on Lake Eola Park because it limited the
number of large group feedings that any one group could sponsor and “[told] them,
‘We need to make use of all of our parks and facilities and spread the burden
around.’”
Orlando Food Not Bombs and four of its members, Ryan Hutchinson,
Benjamin Markeson, Eric Montanez, and Adam Ulrich, and the Church and its
pastor, Brian Nichols, together filed in the district court a complaint against the
City of Orlando that sought injunctive and declaratory relief and damages. The
Church alleged that the ordinance, as applied, violated the Florida Religious
Freedom Restoration Act, Fla. Stat. § 761.01 et seq.; and that the ordinance, both
facially and as applied, violated the Free Exercise Clause of the First Amendment.
The Church and Orlando Food Not Bombs both alleged that the ordinance, facially
and as applied, violated the Free Assembly Clause of the First Amendment and the
Due Process and Equal Protection Clauses of the Fourteenth Amendment. Orlando
Food Not Bombs also alleged that the ordinance, facially and as applied, violated
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the Free Speech Clause of the First Amendment.
The district court granted summary judgment in favor of the City on the
claims under the Due Process and Equal Protection Clauses, and the district court
granted summary judgment against the facial challenge under the Free Speech
Clause as without merit because the conduct regulated by the ordinance was not,
on its face, expressive activity. After a two-day bench trial on the remaining
issues, the district court granted a motion by the City for judgment on partial
findings, Fed. R. Civ. P. 52(c), on the claims of the Church under the Florida
Religious Freedom Restoration Act. The district court then entered judgment on
the remaining claims in a written order. First Vagabonds Church of God v. City of
Orlando, 578 F. Supp. 2d 1353 (M.D. Fla. 2008).
The district court ruled in favor of the Church on its claim under the Free
Exercise Clause, in favor of Orlando Food Not Bombs on its as-applied claim
under the Free Speech Clause, and in favor of the City on the claim under the Free
Assembly Clause. Id. at 1362. The district court permanently enjoined the City
from enforcing the ordinance. Id. The City, Orlando Food Not Bombs, and the
Church appealed the respective rulings of the district court that were not in their
favor with the exception of the Free Assembly claim, which was abandoned on
appeal.
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A panel of this Court affirmed in part, reversed in part, and vacated the
injunction. First Vagabonds Church of God v. City of Orlando, 610 F.3d 1274
(11th Cir. 2010). The panel reversed judgment in favor of Orlando Food Not
Bombs and the Church on the claims under the Free Speech and Free Exercise
Clauses, and the panel affirmed the judgment in favor of the City on the claims
under the Florida Religious Freedom Restoration Act and the Equal Protection and
Due Process Clauses. Id. at 1285–92.
On August 31, 2010, we granted the petition for rehearing en banc filed by
Orlando Food Not Bombs and vacated the panel opinion. First Vagabonds Church
of God v. City of Orlando, 616 F.3d 1229 (11th Cir. 2010). We directed Orlando
Food Not Bombs and the City to brief one issue: whether the ordinance as applied
to Orlando Food Not Bombs violated the Free Speech Clause of the First
Amendment. We later heard oral argument on that issue.
II. STANDARD OF REVIEW
We review questions of law de novo. Gold Coast Publ’ns, Inc. v. Corrigan,
42 F.3d 1336, 1343 (11th Cir. 1994). “[W]e review the core constitutional facts de
novo, unlike historical facts, which are measured only for clear error.” Bloedorn v.
Grube, 631 F.3d 1218, 1229 (11th Cir. 2011).
III. DISCUSSION
7
The resolution of this appeal does not require us to determine whether the
feeding of homeless persons by Orlando Food Not Bombs in public parks is
expressive conduct entitled to protection under the First Amendment. We will
assume, without deciding, that this conduct is expressive and entitled to some
protection under the First Amendment. See Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3068–69 (1984). But even when we
assume that the feeding of homeless persons by Orlando Food Not Bombs is
expressive conduct, we cannot conclude that the ordinance that regulates that
conduct violates the Free Speech Clause of the First Amendment.
We need look no further than the decision of the Supreme Court in Clark to
resolve this appeal. 468 U.S. 288, 104 S. Ct. 3065. In Clark, the Community for
Creative Non-Violence had obtained a permit from the National Park Service to
conduct a demonstration in Lafayette Park and the National Mall in Washington,
D.C. Id. at 291, 104 S. Ct. at 3068. The Community planned to erect several tents
as a symbolic statement about the plight of the homeless in the District of
Columbia. Id. The National Park Service allowed the erection of the symbolic
tents, but denied a request by the Community to allow participants in the
demonstration to sleep in the tents. Id. at 292, 104 S. Ct. at 3068. The Park
Service relied on a regulation that permitted camping only in campgrounds
8
designated for that purpose. Id. at 291–92, 104 S. Ct. at 3068. The Community
complained that the regulation, as applied to the participants in the demonstration,
violated the Free Speech Clause. Id. The Supreme Court assumed, without
deciding, that sleeping in connection with the demonstration was expressive
conduct protected to some extent by the First Amendment, but nonetheless upheld
the regulation as applied to the Community by the Park Service. Id. at 293–94,
104 S. Ct. 3069.
The Supreme Court held that the prohibition of overnight sleeping in public
parks, as a symbolic statement about the plight of the homeless, withstood
constitutional scrutiny “either as a time, place, or manner restriction or as a
regulation of symbolic conduct.” Id. at 294, 104 S. Ct. at 3069. The regulation
was valid as a reasonable time, place, or manner restriction because “the ban on
sleeping[] [was] clearly [a] limitation[] on the manner in which the demonstration
could be carried out.” Id. That the Court assumed that sleeping was a form of
expression did not change the analysis because “the Park Service neither attempts
to ban sleeping generally nor to ban it everywhere in the parks.” Id. at 295, 104 S.
Ct. at 3070. The challenged regulation was a reasonable time, place, or manner
restriction because it was content neutral, left open alternative channels of speech,
id., and was narrowly focused on the substantial interest of the government in
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“maintaining the parks in the heart of our Capital in an attractive and intact
condition, readily available to the millions of people who wish to see and enjoy
them by their presence,” id. at 296, 104 S. Ct. at 3070. The Supreme Court also
explained that the regulation that prohibited overnight sleeping satisfied the four-
part test of United States v. O’Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679
(1968). Clark, 468 U.S. at 298–99, 104 S. Ct. at 3071–72. There was no
contention that a prohibition on overnight sleeping in public parks was beyond the
constitutional power of the government to enforce, id.; the government had a
substantial interest in conserving park property that was “plainly served by . . .
measures such as the proscription of sleeping that are designed to limit the wear
and tear on park properties,” id. at 299, 104 S. Ct. at 3072; that interest was
unrelated to the suppression of expression, id.; and the incidental restrictions of the
alleged freedoms under the First Amendment were no greater than necessary to
further the interest of the government, id.
The Supreme Court rejected the reasoning of the Court of Appeals for the
District of Columbia Circuit that the incidental restriction of the freedoms of the
demonstrators under the First Amendment was greater than necessary because
there were “less speech-restrictive alternatives that could have satisfied the
Government interest in preserving park lands.” Id. The Supreme Court described
10
the suggestion by the circuit court of alternative means of preserving the park lands
as “represent[ing] no more than a disagreement with the Park Service over how
much protection the core parks require or how an acceptable level of preservation
is to be attained.” Id. The Supreme Court explained that its decisions about the
First Amendment do not “assign to the judiciary the authority to replace the Park
Service as the manager of the Nation’s parks or endow the judiciary with the
competence to judge how much protection of park lands is wise and how that level
of conservation is to be attained.” Id.
Even when we assume that the feeding of homeless persons is expressive
conduct, the ordinance, as applied to Orlando Food Not Bombs, is a reasonable
time, place, or manner restriction. The ordinance restricts feedings even less than
the regulation in Clark restricted sleeping. Orlando Food Not Bombs can obtain
two permits a year for each of the 42 parks in the Greater Downtown Parks
District, which allows for a total of 84 group feedings a year at parks within a two-
mile radius of the City Hall. The ordinance places no restrictions on the number of
large group feedings Orlando Food Not Bombs can sponsor at any of the other 66
parks located outside the Greater Downtown Parks District. The City “neither
attempts to ban [large group feedings] generally nor to ban [them] everywhere in
the parks.” Id. at 295, 104 S. Ct. at 3070. Orlando Food Not Bombs does not
11
contend that the ordinance is content based. The ordinance leaves open ample
channels of communication; Orlando Food Not Bombs is not prevented by the
ordinance from conducting as many political rallies, demonstrations, distributions
of literature, or any other expressive activities as it likes at Lake Eola Park. The
ordinance also narrowly furthers the substantial interest of the City in managing its
parks and “be[ing] fair to individual neighborhoods” by spreading the burden of
the large group feedings.
The ordinance is a valid regulation of expressive conduct that satisfies all
four requirements of O’Brien, 391 U.S. at 377, 88 S. Ct. at 1679. First, Orlando
Food Not Bombs does not contest that it is within the power of the City to enact
ordinances that regulate park usage. Second, the City has a substantial interest in
managing park property and spreading the burden of large group feedings
throughout a greater area and those interests are plainly served by the ordinance.
Third, the interest of the City in managing parks and spreading large group
feedings to a larger number of parks is unrelated to the suppression of speech.
Fourth, the incidental restriction of alleged freedoms under the First Amendment is
not greater than necessary to further the interest of the City. We cannot “replace
the [City] as the manager of [its] parks,” nor decide “how much protection of park
lands is wise and how that level of conservation is to be attained.” Clark, 468 U.S.
12
at 299, 104 S. Ct. at 3072. The City is in a far better position than this Court to
determine how best to manage the burden that large group feedings place on
neighborhoods in the City.
After the district court directed the parties to file post-trial briefs in lieu of
making closing arguments, the City argued at length that “Clark is particularly
relevant . . . because of its facts,” but the district court failed inexplicably to
discuss the Clark decision in its final order. The district court acknowledged that
the primary reason the City adopted the ordinance was “an effort to spread the
impact of large group feedings among Orlando’s parks.” First Vagabonds Church
of God, 578 F. Supp. 2d at 1360. The district court reasoned that, although “the
City clearly has the right to regulate the use of its parks, this Ordinance does not do
so” in a permissible manner because “whatever problems may exist, this Ordinance
does nothing but move them around to be shared by other parks.” Id. at 1361. The
district court failed to explain why sharing the burden of large group feedings
among a larger group of parks and neighborhoods is not a substantial governmental
interest. The district court instead erroneously concluded, without analysis, that
“[e]ven assuming that the Ordinance did further a substantial governmental
interest, the restrictions placed on First Amendment freedoms are much greater
than [those] which are essential.” Id. The district court would have benefitted
13
from closer consideration of Clark, where the Supreme Court rejected the
contention that, because there were “less speech-restrictive alternatives that could
have satisfied the Government interest in preserving park lands,” the restrictions
placed on freedoms under the First Amendment were too great. Clark, 468 U.S. at
299, 104 S. Ct. at 3072.
The Supreme Court has made clear that “an incidental burden on speech is
no greater than is essential, and therefore is permissible under O’Brien, so long as
the neutral regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation.” United States v. Albertini, 472
U.S. 675, 689, 105 S. Ct. 2897, 2906 (1985). We have no doubt that the
substantial interest of the City in spreading the burden of large group feedings
among a larger number of parks would be achieved less effectively absent the
ordinance. The Supreme Court has instructed us that “the validity of such
regulations [of expressive conduct] does not turn on a judge’s agreement with the
responsible decisionmaker concerning the most appropriate method for promoting
significant government interests.” Id. at 689, 105 S. Ct. at 2907.
IV. CONCLUSION
The ordinance as applied to the feedings of homeless persons by Orlando
Food Not Bombs does not violate the Free Speech Clause of the First Amendment.
14
This Court did not reconsider en banc sections II.B-E of our panel opinion in this
appeal, and the result reached in those sections of the panel opinion is
REINSTATED. See First Vagabonds Church of God, 610 F.3d at 1285–92. The
decision of the district court is AFFIRMED in part and REVERSED in part, and
the permanent injunction is VACATED.
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