Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale ( 2021 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13604
________________________
D.C. Docket No. 0:15-cv-60185-WJZ
FORT LAUDERDALE FOOD NOT BOMBS,
NATHAN PIM,
JILLIAN PIM,
HAYLEE BECKER,
WILLIAM TOOLE,
Plaintiffs - Appellants,
versus
CITY OF FORT LAUDERDALE,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 31, 2021)
Before LAGOA, HULL, and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
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This case presents the second appellate skirmish in Fort Lauderdale Food
Not Bombs’s (“FLFNB”) challenge to Fort Lauderdale’s efforts to shut down the
practice of sharing food with the homeless in downtown Stranahan Park. FLFNB
hosts food-sharing events in order to communicate the group’s message that scarce
social resources are unjustly skewed towards military projects and away from
feeding the hungry. In Round One, a panel of this Court held FLFNB’s food
sharing to be expressive conduct protected by the First Amendment and remanded
the case to the district court to address whether the City’s regulations actually
violated the First Amendment. Now, in Round Two, we must decide whether Fort
Lauderdale Park Rule 2.2, which requires City permission for social service food-
sharing events in all Fort Lauderdale parks, can withstand First Amendment
scrutiny as applied to FLFNB’s demonstrations.
It cannot. The Park Rule commits the regulation of FLFNB’s protected
expression to the standardless discretion of the City’s permitting officials. The
Park Rule bans social service food sharing in Stranahan Park unless authorized
pursuant to a written agreement with Fort Lauderdale (the “City”). That’s all the
rule says. It provides no guidance and in no way explains when, how, or why the
City will agree in writing. As applied to FLFNB’s protected expression, it violates
the First Amendment. It is neither narrowly drawn to further a substantial
government interest that is unrelated to the suppression of free expression, nor, as
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applied, does it amount to a reasonable time, place, and manner regulation on
expression in a public forum. Accordingly, we reverse the district court’s order
granting summary judgment in favor of the City and remand for further
proceedings consistent with this opinion.
I.
A.
Fort Lauderdale Food Not Bombs is a nonprofit unincorporated association
affiliated with the international advocacy organization Food Not Bombs. FLFNB
advocates the message “that food is a human right, not a privilege, which society
has a responsibility to provide for all.” Fort Lauderdale Food Not Bombs v. City
of Fort Lauderdale, 901 F.3d 1235, 1238 (11th Cir. 2018) (“FLFNB I”).
At the center of FLFNB’s efforts are its weekly food sharing events in Fort
Lauderdale’s downtown Stranahan Park. Stranahan Park “is known in the
community as a location where the homeless tend to congregate and, according to
FLFNB, ‘has traditionally been a battleground over the City’s attempts to reduce
the visibility of homelessness.’” Id. “At these events, FLFNB distributes
vegetarian or vegan food, free of charge, to anyone who chooses to participate.
FLFNB does not serve food as a charity, but rather to communicate its message
‘that [ ] society can end hunger and poverty if we redirect our collective resources
from the military and war . . . .’ Providing food in a visible public space, and
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partaking in meals that are shared with others, is an act of political solidarity meant
to convey the organization’s message.” Id.“FLFNB sets up a table underneath a gazebo in the park, distributes food,
and its members . . . eat together with all of the participants, many of whom are
homeless individuals residing in the downtown Fort Lauderdale area. FLFNB’s
set-up includes a banner with the name ‘Food Not Bombs’ and the organization’s
logo -- a fist holding a carrot -- and individuals associated with the organization
pass out literature during the event.” Id. This includes flyers to convey FLFNB’s
social-justice message that all who are hungry deserve food.
B.
Sometime before 2000, the City of Fort Lauderdale promulgated Park Rule
2.2:
Parks shall be used for recreation and relaxation, ornament, light and
air for the general public. Parks shall not be used for business or social
service purposes unless authorized pursuant to a written agreement with
City. As used herein, social services shall include, but not be limited
to, the provision of food, clothing, shelter or medical care to persons in
order to meet their physical needs.
Some years ago, Arnold Abbott, who led a program to feed the homeless on a
public Fort Lauderdale beach, obtained a state-court injunction against the Park
Rule on the ground that it violated Florida’s Religious Freedom Restoration Act,
Fla. Stat. § 761.03. (Abbott is not affiliated with FLFNB.) The injunction required
the City to either stop enforcing the Park Rule, designate an area in which Abbott
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could lawfully distribute food, or specify objective criteria for permitted food-
sharing locations. See Abbott v. City of Fort Lauderdale, 783 So. 2d 1213, 1215
(Fla. Dist. Ct. App. 2001).
The City stopped enforcing the Park Rule until October 22, 2014, when it
enacted Ordinance C-14-42 to amend the Fort Lauderdale Uniform Land
Development Regulations (“ULDR”). The City enacted this ordinance at least in
part as an effort to bring itself into compliance with the state-court injunction so
that it could resume enforcement of the Park Rule. In the years leading up to the
enactment of Ordinance C-14-42, some citizens had complained about a series of
problems they believed to be associated with feeding the homeless in public
spaces, including safety risks, a lack of proper water and restroom facilities, and
the negative impact this conduct may have on surrounding communities. In
January 2014, the City Commission held a workshop on the “the homeless
population in the City of Fort Lauderdale,” where stakeholders debated public food
distribution and related issues.
Ordinance C-14-42, as relevant here, (1) defines an Outdoor Food
Distribution Center as “[a]ny location or site temporarily used to furnish meals to
members of the public without cost or at a very low cost as a social service”; (2)
defines “social service[]” as “[a]ny service provided to the public to address public
welfare and health such as, but not limited to, the provision of food; hygiene care;
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group rehabilitative or recovery assistance, or any combination thereof;
rehabilitative or recovery programs utilizing counseling, self-help or other
treatment or assistance; and day shelter or any combination of same”; and (3)
requires a conditional use zoning permit for the operation of an Outdoor Food
Distribution Center in Stranahan Park. 1 The other city parks in Fort Lauderdale (of
which there are more than 90, City of Fort Lauderdale, City Parks,
https://www.fortlauderdale.gov/departments/parks-recreation/city-parks (last
visited June 29, 2021)) are zoned so that public food-sharing events are not
allowed at all, even by permit. Thus, the Ordinance prohibits social service food
distribution in most parks and does not provide for food sharing as of right in any
park.
To obtain a conditional use permit, an individual or group must wind
through a lengthy process for receiving a zoning variance. This involves an initial
application to the Development Review Committee (which meets twice a month);
upon approval, a subsequent submission and presentation to the Planning and
Zoning Board (which meets once a month); and then a subsequent review by the
1
Ordinance C-14-42 implemented these regulations of outdoor food distribution by adding new
provisions -- ULDR §§ 47-1B.31(B)(4), (C)(2)(c) -- and by making additions to ULDR §§ 47-
6.12; 47-6.13; 47-7.10; 47-8.10; 47-8.11; 47-8.12; 47-8.13; and 47-13.10. We refer to these
specific components of Ordinance C-14-42 -- those that regulate outdoor food distribution -- as
the “Ordinance.” Other provisions of Ordinance C-14-42 regulate other social services not
relevant to this case, such as providing addiction treatment centers. The constitutionality of the
other provisions of Ordinance C-14-42 is not before this Court.
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City Commission. The City Commission has 30 days to decide whether to conduct
its own review of the application; if the City Commission does not, the application
is considered approved and returns to the Development Review Committee for a
check to make sure the final permit is the same as the plan the Zoning Board
approved. There is no deadline for a permit to issue, and the City’s zoning
administrator could not provide an average time for resolving applications.
Applicants must pay a fee for City staff time spent reviewing an application; the
fee can rise as high as $6,000, which the City may reduce in its unguided
discretion.
Permitting requirements for outdoor food distribution include that the
proposed activities must not impose a nuisance or cause a change to the character
of the area, that the use be 500 feet away from similar uses and residential
property, that food be timely served and stored at safe temperatures, that a certified
food service manager attend the event, and that the site provide handwashing,
wastewater disposal, and restroom facilities.
Soon after the Ordinance passed, the City began enforcing it along with the
Park Rule. Police officers interrupted and stopped an FLFNB demonstration in
Stranahan Park on November 7, 2014. On that day, the city arrested and cited
FLFNB members and other demonstrators for violating both the Ordinance and the
Park Rule. The City also issued citations to participants in FLFNB demonstrations
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on November 14 and November 21. FLFNB members Nathan Pim, Jillian Pim,
Haylee Becker, and William Toole were not personally arrested or cited, but were
present at each of these events and witnessed their co-demonstrators being arrested
and cited on November 7 and November 14. They did not directly witness any
arrests or citations at the November 21 event; police later delivered a citation to the
home of a participant in that demonstration.
The City also enforced the Ordinance and the Park Rule against Abbott, who
moved the state court for an order to enforce its 2000 injunction and halt
enforcement. See Mot. to Enforce Inj., Abbott v. City of Fort Lauderdale, No. 99-
03583 (05), Dkt. No. 37 (Fla. Cir. Ct. Nov. 12, 2014). The Seventeenth Judicial
Circuit Court in Broward County issued a temporary stay on December 2, 2014,
and the City stopped enforcing the Ordinance along with the Park Rule. Even
though the state-court stay expired on January 1, 2015, the City voluntarily
continued its non-enforcement, and has not enforced the Ordinance or the Park
Rule since. FLFNB continues to hold weekly food-sharing demonstrations in
Stranahan Park.
C.
Soon after the state-court stay expired, on January 29, 2015, FLFNB and
members Nathan Pim, Jillian Pim, Haylee Becker, and William Toole (the
“Individual Plaintiffs,” and, together with FLFNB, the “Plaintiffs”) sued the City
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in the United States District Court for the Southern District of Florida pursuant to
42 U.S.C. § 1983. They alleged that the Ordinance and the Park Rule violated
their First Amendment rights to free expression and expressive association, and
that these regulations were unconstitutionally vague, both facially and as applied.
The Plaintiffs sought declaratory and injunctive relief as well as compensatory
damages.
After discovery, the parties cross-moved for summary judgment. The
district court granted the City’s motion on all claims, holding that FLFNB’s food-
sharing was not expressive conduct entitled to First Amendment protection. Fort
Lauderdale Food Not Bombs v. City of Fort Lauderdale, No. 15-60185-CIV, 2016
WL 11700270, at *9 (S.D. Fla. Sept. 30, 2016). In an analysis heavily influenced
by its initial holding that FLFNB was not engaged in expressive conduct, the
district court concluded that the Ordinance and the Park Rule did not infringe on
the Plaintiffs’ rights to expressive association. Id. Finally, the district court held
that the Ordinance and the Park Rule were not unconstitutionally vague. The court
acknowledged that this holding was also influenced by its conclusion that FLFNB
was not engaged in expressive conduct. Id. at *10.
The Plaintiffs appealed the trial court’s judgment to this Court. On
November 7, 2017, while the appeal was pending, the City repealed the Ordinance
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insofar as it regulated outdoor food distribution. However, Fort Lauderdale did not
repeal the Park Rule, which remains on the books.
In Round One, a panel of this Court reversed the district court’s summary
judgment order. FLFNB I, 901 F.3d at 1245. We applied the two-part inquiry
drawn from Spence v. Washington, 418 U.S. 405, 410–411 (1974), and held that
FLFNB’s demonstrations were expressive conduct protected by the First
Amendment. FLFNB I, 901 F.3d at 1240–43. First, the panel had little difficulty
concluding that FLFNB “inten[ded] to convey a particularized message” with its
food sharing events. Id. at 1240 (quoting Spence, 418 U.S. at 410–411). FLFNB
shared food in order “to convey that all persons are equal, regardless of socio-
economic status, and that everyone should have access to food as a human right.”
Id. at 1240–41.
Next, the panel closely examined the circumstances surrounding FLFNB’s
food sharing in order to apply the second part of the Spence inquiry -- whether a
“reasonable person would interpret FLFNB’s food sharing events ‘as some sort of
message.’” Id. at 1242 (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d
1252, 1270 (11th Cir. 2004)). We held that five circumstances surrounding
FLFNB’s events would lead a reasonable observer to discern a message. First,
FLFNB wasn’t just a group of acquaintances eating together in a park -- it adorned
its events with tables and banners and distributed literature explaining its political
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message. Second, the events had “social implications” because they were open to
all comers. Id. Third, FLFNB held its food sharings “in Stranahan Park, a public
park near city government buildings.” Id. Public parks, the panel noted, are
“historically associated with the exercise of First Amendment rights.” Id. (citation
omitted). Fourth, treatment of the homeless was an issue of substantial public
concern and discussion in the Fort Lauderdale community. Indeed, the City had
held a public workshop on the issue, and local media had covered “the status of the
City’s homeless population” for years. Id. Fifth, the sharing of food with others in
order to communicate a message was a tradition that “date[d] back millennia.” Id.
at 1243. All of these circumstances combined to “put[] FLFNB’s food sharing
events on the expressive side of the ledger.” Id. at 1242.
Since each of the district court’s merits holdings had turned in substantial
part on its erroneous conclusion about expressive conduct, the panel remanded the
case for the district court to reconsider these issues as well as to address in the first
instance whether the Ordinance and the Park Rule violated the First Amendment.
Id. at 1245 & n.2.
On remand, the district court took supplemental briefing, including on the
effect of the repeal of the Ordinance. For a second time, the district court entered
summary judgment in favor of the City. The court held that the Plaintiffs had
standing based on the City’s disruption of their events, and that FLFNB was a
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“person” with a cause of action under 42 U.S.C. § 1983. The court noted that
while the repeal of the Ordinance mooted the Plaintiffs’ claims for declaratory and
injunctive relief against the Ordinance, the court still had to rule on its
constitutionality because the Plaintiffs also sought compensatory damages. Next,
the district court held that even accepting FLFNB I’s binding holding that the
Ordinance and the Park Rule interfered with the Plaintiffs’ expressive conduct,
both regulations passed First Amendment muster as lawful, content-neutral time,
place, and manner regulations.
As for the Plaintiffs’ claims that the Ordinance and the Park Rule’s
permitting requirements acted as a prior restraint by giving City officials unguided
discretion to block their expression, the district court observed that the regime was
“somewhat suspect.” After all, Fort Lauderdale’s officials could charge as much
as $6,000 for the permitting process but could reduce that amount in any way if
they “fe[lt]” it appropriate. Meanwhile, the Park Rule did not provide any
standards to guide the exercise of discretion in determining whether to provide
City permission to share food in the park. Even so, the district court concluded
that the permitting schemes were not subject to either as-applied or facial
challenges, because the Plaintiffs never applied for a permit and because the
regulations were “laws . . . of general application” that did not directly regulate
protected expression. The district court also rejected the Plaintiffs’ expressive
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association arguments, reasoning that the regulations “impose a content-neutral
restriction on a kind of expressive conduct that is only incidentally associative.”
Finally, the trial court held that the terms found in the Ordinance and in the Park
Rule, such as “social service,” were not unconstitutionally vague.
Again, the Plaintiffs timely appealed to this Court.
II.
Before we can consider the merits of the Plaintiffs’ claims, we are required
to address three threshold matters. As for the first one, we conclude that FLFNB is
a “person” and therefore a proper plaintiff under § 1983 of Title 42. Second, as for
the City’s Ordinance, the Plaintiffs’ claims for injunctive and declaratory relief are
moot; however, their monetary damages claims arising out of the enforcement of
the Ordinance are not. Finally, all of the Plaintiffs have standing to bring their
remaining claims. Our review on each of these issues is de novo. See Hoever v.
Marks, 993 F.3d 1353, 1357 (11th Cir. 2021); Taylor v. Polhill, 964 F.3d 975, 980
(11th Cir. 2020); Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320,
1328 (11th Cir. 2004).
A.
First, the City argues that FLFNB, as an unincorporated association, is not a
“person” that may bring suit under § 1983, which provides in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
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subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983 (emphasis added). There is some historical support for the City’s
reading, but this view stands in tension with the text’s ordinary meaning, Supreme
Court precedent, successive amendments to § 1983, and longstanding, settled
practice. Absent clear direction from the Supreme Court, we decline the City’s
invitation to bar all unincorporated associations (other than unions) from being
able to sue under § 1983.
“As with any statutory interpretation question, our analysis ‘must begin, and
usually ends, with the text of the statute.’” United States v. Stevens, 997 F.3d
1307, 1314 (11th Cir. 2021) (citation omitted). When examining the phrase “any
citizen of the United States or other person,” “person” must refer to something
beyond individuals who are United States citizens; otherwise, the term would be
redundant. See, e.g., Corley v. United States, 556 U.S. 303, 314 (2009) (noting
that “one of the most basic interpretive canons” is “that ‘[a] statute should be
construed so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant’”) (citation omitted and alteration
accepted). At the very least, the phrase extends a § 1983 cause of action to non-
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citizen individuals. Congress enacted Section 1 of the Civil Rights Act of 1871
(also known as the Ku Klux Klan Act), the original version of what is now § 1983,
in order to enforce the Fourteenth Amendment. See, e.g., Ngiraingas v. Sanchez,
495 U.S. 182, 187 (1990). The word “person” in the Fourteenth Amendment
includes not only citizens but also non-citizens within the United States. E.g.,
Graham v. Richardson, 403 U.S. 365, 371 (1971); see also Hague v. Comm. for
Indus. Org., 307 U.S. 496, 526 (1939) (opinion of Stone, J.) (“It will be observed
that the cause of action, given by [Section 1 of the 1871 Civil Rights Act], extends
broadly to . . . those rights secured to persons, whether citizens of the United States
or not, to whom the [Fourteenth] Amendment in terms extends the benefit of the
due process and equal protection clauses.”). We also know that the word “person”
in § 1983 extends to corporations, both municipal and otherwise. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 687, 690 (1978). Indeed, in Monell, the
Supreme Court observed that “by 1871, it was well understood that corporations
should be treated as natural persons for virtually all purposes of constitutional and
statutory analysis.” Id. at 687.
However, the Supreme Court has also ruled that Native American Tribes
seeking to vindicate sovereign rights, States, State officers acting in their official
capacities, Territories, and Territory officers acting in their official capacities are
not “persons.” Inyo Cnty. v. Paiute-Shoshone Indians of the Bishop Cmty. of the
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Bishop Colony, 538 U.S. 701, 712 (2003) (reasoning that § 1983 “was designed to
secure private rights against government encroachment” to reach this conclusion in
the case of a Tribe suing to vindicate its right to sovereign immunity from state
process); Ngiraingas, 495 U.S. at 187–92 (examining historical sources and the
context surrounding amendments to § 1983 to reach this conclusion with respect to
Territories and their officers); Will v. Mich. Dep’t of State Police, 491 U.S. 58,
64–67 (1989) (relying on federalism concerns, the Eleventh Amendment, and the
“often-expressed understanding that ‘in common usage, the term ‘person’ does not
include the sovereign, and statutes employing the word are ordinarily construed to
exclude it’” to reach this conclusion regarding States and their officials)
(alterations accepted and citation omitted). Monell, Ngiraingas, and Will each
interpreted the first use of the word “person” in § 1983, which relates to which
entities may be proper § 1983 defendants -- “[e]very person” who under color of
law causes a deprivation of federal rights shall be liable to the party injured. By
contrast, today we interpret § 1983’s second use of the word “person” -- “any
citizen or other person” -- a phrase that delineates which entities may be proper §
1983 plaintiffs. But these cases are nonetheless instructive, because we “generally
presume that ‘identical words used in different parts of the same act are intended to
have the same meaning.’” United States v. Cleveland Indians Baseball Co., 532
U.S. 200, 213 (2001) (citation omitted).
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In order to decide whether FLFNB has a cause of action in this case, we
must determine whether “other persons,” in addition to including non-citizen
individuals and corporate entities, extends to unincorporated associations. The
words “other person,” by themselves, do not definitively answer the question. Cf.
Ngiraingas, 495 U.S. at 187 (“[Section 1983] itself obviously affords no clue as to
whether its word ‘person’ includes a Territory.”). Unlike sovereign entities, there
is no presumption that unincorporated associations are not persons. To the
contrary, the ordinary meaning of “person” in legal contexts includes
unincorporated associations. See Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 273 (2012) (“Traditionally the word person
. . . denotes not only natural persons (human beings) but also artificial persons such
as corporations, partnerships, associations, and both public and private
organizations.”) (second emphasis added). Thus, the most natural reading of §
1983 extends a cause of action to unincorporated associations.
On the other hand, we “normally interpret[] a statute in accord with the
ordinary public meaning of its terms at the time of its enactment.” Bostock v.
Clayton Cnty., 140 S. Ct. 1731, 1738 (2020). And in 1871, unincorporated
associations were not legal persons with the capacity to sue or be sued absent some
express authorization. United Mine Workers of Am. v. Coronado Coal Co., 259
U.S. 344, 385 (1922) (“Undoubtedly at common law an unincorporated association
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of persons was not recognized as having any other character than a partnership in
whatever was done, and it could only sue or be sued in the names of its members,
and their liability had to be enforced against each member.”); Wesley A. Sturges,
Unincorporated Associations as Parties to Actions, 33 Yale L.J. 383, 383 (1924)
(citing authorities dating as far back as 1884 to observe that “[t]he cases are
remarkably in accord that, in the absence of enabling statute, an unincorporated
association cannot sue or be sued in the common or association name”).
Moreover, reading the word “person” to exclude unincorporated associations
is fully consonant with the 1871 version of the Dictionary Act, which expressly
limited “person” to “bodies politic and corporate.” See, e.g., Will, 491 U.S. at 69
n.8. The Dictionary Act -- a statute that provides general definitions for common
terms used across the United States Code, see 1 U.S.C. § 1 -- did not expand to
include “associations” until 1948. See Act of June 25, 1948, Pub. L. No. 80-772, §
6, 62 Stat. 683, 859 (1948); Lippoldt v. Cole, 468 F.3d 1204, 1214 (10th Cir.
2006). The 1871 Dictionary Act definition matches the definition of “person”
found in the first edition of Black’s Law Dictionary, published in 1891, which
confirms that an entity needed some express authorization in positive law to
achieve legal personhood. Person, Black’s Law Dictionary (1891) (“Persons are
divided by law into natural and artificial. Natural persons are such as the God of
nature formed us; artificial are such as are created and devised by human laws, for
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the purposes of society and government, which are called ‘corporations’ or ‘bodies
politic.’”).
What’s more, the legislative history surrounding the adoption of the 1871
Civil Rights Act does not suggest any departure from the established legal meaning
of “person” as it related to the capacity to sue in 1871. See Monell, 436 U.S. at
690 (analyzing the legislative history of Section 1 to interpret § 1983). The
drafters of Section 1 of the 1871 Civil Rights Act likely did not contemplate that
unincorporated associations were “persons” under the Act. The Republican
sponsors of the Civil Rights Act were aghast at reports of widespread vigilante
violence against federal officials, northern transplants, Blacks, and Republicans in
the post-war South. These attacks, they believed, were the work of recalcitrant
Confederates, including individuals organized as the Ku Klux Klan, who faced
only weak opposition from ineffectual state officials. See, e.g., Cong. Globe, 42d
Cong., 1st Sess., 320 (1871) (hereinafter “Globe”) (Rep. Stoughton) (“There exists
at this time in the southern States a treasonable conspiracy against the lives,
persons, and property of Union citizens, less formidable it may be, but not less
dangerous, to American liberty than that which inaugurated the horrors of the
rebellion.”); id. at 820 (Sen. Sherman) (observing that the bill was based on the
fact that “an organized conspiracy, spreading terror and violence, murdering and
scourging both white and black, both women and men, and pervading large
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communities of this country, now exists unchecked by punishment, independent of
law, uncontrolled by magistrates” and that “of all the multitude of injuries not in a
single case has redress ever been meted out to one of the multitude who has been
injured”).
Section 1 itself “was the subject of only limited debate and was passed
without amendment.” Monell, 436 U.S. at 665. At most, read together with
statements about the 1871 Act generally, floor discussions of Section 1 suggest that
both proponents and opponents of the 1871 Act believed that the typical plaintiff
would be an individual who suffered a violation of constitutional rights, especially
the denial of the equal protection of the laws at the hands of state officials. Thus,
for example, proponent Senator Dawes spoke of “citizen[s]” who suffered
violations of their rights -- phrasing that implies a concern for the individual
plaintiff. Globe at 477 (“I conclude . . . [that] Congress has power to legislate for
the protection of every American citizen in the full, free, and undisturbed
enjoyment of every right, privilege, or immunity secured to him by the
Constitution; and that this may be done . . . [b]y giving him a civil remedy in the
United States courts for any damage sustained in that regard.”). For their part,
Democrats who opposed the passage of Section 1 generally claimed that it was too
broad, but notably did not argue that the word “person” did anything to expand the
range of entities that could traditionally sue. They, too, seemed to envision
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individual plaintiffs. E.g., id. at 337 (Rep. Whithorne) (complaining that “any
person within the limits of the United States who conceives that he has been
deprived of any right, privilege, or immunity secured him by the Constitution”
would be able to sue and conjuring the hypothetical example of a drunk suing a
police officer who had confiscated his pistol).
All told, historical context suggests that the word “person” as used in
Section 1 of the 1871 Civil Rights Act did not extend to unincorporated
associations. But this does not end the analysis, because we are not interpreting
Section 1 of the 1871 Civil Rights Act. Instead, we must apply § 1983 of Title 42
of the United States Code as it exists today, that is, as thrice amended since its
initial enactment in 1871. We must therefore account for any changes in the legal
meaning of “person” that may have informed Congress’s decision to perpetuate
that term across amended versions of § 1983. Indeed, the Supreme Court in
Ngiraingas looked not only to the history of the 1871 Civil Rights Act but also to
“the successive enactments of [§ 1983], in context” -- and to changes to the
definition of “person” in the Dictionary Act -- in order to interpret the word
“person.” 495 U.S. at 189, 191 n.10.
Congress amended the text of § 1983 twice after the 1948 amendment to the
Dictionary Act -- which made clear that “person” in “any Act of Congress”
includes “associations” and “societies” in addition to “corporations,” “companies,”
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“firms,” “partnerships,” “joint stock companies,” and “individuals.” See 62 Stat. at
859; 1 U.S.C. § 1. A congressional amendment in 1979 extended § 1983’s
coverage to injuries inflicted by those acting under the color of District of
Columbia law; a 1996 amendment limited the availability of injunctive relief
against judicial defendants. See Act of December 29, 1979, Pub. L. No. 96-170,
93 Stat. 1284 (1979); Federal Courts Improvement Act of 1996, Pub. L. No. 104-
317, 110 Stat. 3847 (1996). In neither re-enacted version of § 1983 did Congress
narrow the definition of “person” in light of the intervening clarification in the
Dictionary Act that associations are “persons” as that term is used in federal
statutes. Cf. United States v. Bryant, 996 F.3d 1243, 1258 (11th Cir. 2021)
(“[W]hen interpreting statutes, what Congress chose not to change can be as
important as what it chose to change.”).
Similarly, Congress enacted both of these amendments after the 1937
promulgation of Federal Rule of Civil Procedure 17(b), which provided “that a
partnership or other unincorporated association, which has no such capacity by the
law of such state, may sue or be sued in its common name for the purpose of
enforcing for or against it a substantive right existing under the Constitution or law
of the United States.” Parties, 1937 Rep. Advisory Comm. on Civ. Rules 47
(1937); see also Fed. R. Civ. P. 17(b)(3) (the Rule’s current text remains nearly
identical to that of the original version); Centro De La Comunidad Hispana De
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Locust Valley v. Town of Oyster Bay, 954 F. Supp. 2d 127, 137 (E.D.N.Y. 2013)
(relying on Rule 17(b)(3) to conclude that “an unincorporated association[] ha[d]
legal capacity to bring [a § 1983] suit because all of its claims allege[d] violations
of the United States Constitution”), aff’d, 868 F.3d 104 (2d Cir. 2017), and aff’d,
705 F. App’x 10 (2d Cir. 2017); Playboy Enters., Inc. v. Pub. Serv. Comm’n of
P.R., 698 F. Supp. 401, 413–14 (D.P.R. 1988) (similar analysis regarding the
unincorporated Puerto Rico Cable Television association), aff’d as modified on
other grounds, 906 F.2d 25 (1st Cir. 1990).
And perhaps most significantly, the Supreme Court held in 1974 that an
unincorporated union could “sue under 42 U.S.C. § 1983 as [a] person[] deprived
of [its] rights secured by the Constitution and laws.” Allee v. Medrano, 416 U.S.
802, 819 n.13 (1974). Thus, by the time of the 1979 and 1996 amendments to §
1983, federal law made it quite clear that unincorporated associations were
“persons” that could sue to enforce constitutional rights under § 1983. It is telling
that against this backdrop, Congress did not choose to restrict the scope of the term
“person” when it re-enacted amended versions of § 1983. See Pollitzer v.
Gebhardt, 860 F.3d 1334, 1340 (11th Cir. 2017) (“Congress is presumed to be
aware of an administrative or judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.”) (emphasis added)
(quoting Lorillard v. Pons, 434 U.S. 575, 580 (1978)); Fajardo v. U.S. Att’y Gen.,
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659 F.3d 1303, 1310 (11th Cir. 2011) (“Where words are employed in a statute
which had at the time a well-known meaning at common law or in the law of this
country they are presumed to have been used in that sense unless the context
compels to the contrary.”) (emphasis added) (quoting Lorillard, 434 U.S. at 583);
Scalia & Garner, supra, at 322 (“The clearest application of the prior-construction
canon occurs with reenactments: If a word or phrase has been authoritatively
interpreted by the highest court in a jurisdiction . . . a later version of that act
perpetuating the wording is presumed to carry forward that interpretation.”).
Whatever “person” meant in 1871, its meaning included unincorporated
associations by the time Congress “perpetuated” the word “person” in new
versions of § 1983 in 1979 and 1996. See Scalia & Garner, supra, at 322.
Even setting these textual and historical considerations aside, Allee suggests
that an unincorporated entity like FLFNB, just like the unincorporated union in that
case, is a “person” for § 1983 purposes. In Allee, individual organizers and a
union brought a § 1983 action against Texas officials on behalf of a class of union
members, alleging that law enforcement had threatened and harassed them for
engaging in union organizing activities, including by bringing criminal charges in
bad faith. 416 U.S. at 804–09. A question arose as to whether there were pending
state prosecutions against any of the plaintiffs -- if not, the plaintiffs’ request for
injunctive relief would be partially moot. Id. at 818. The Supreme Court
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instructed that on remand, if there were indeed pending prosecutions against the
unnamed class members, the district court “must find that the class was properly
represented” by the named plaintiffs in part because the named-plaintiff union was
a “person[]” that could sue under § 1983 and that had standing to complain of the
unlawful intimidation of its members. Id. at 819 n.13; see also id. at 831 (Burger,
C.J., concurring in the result in part and dissenting in part) (acknowledging that the
union plaintiff was unincorporated).
In holding that “[u]nions may sue under 42 U.S.C. § 1983 as persons,” the
Court in Allee did not rest on any distinctive features of unions or suggest that
unions should be treated differently than any other kinds of unincorporated
associations. Id. at 819 n.13. The Court might have relied on, but did not so much
as mention, characteristics surrounding unions that other types of unincorporated
associations may not share, such as their affirmative recognition and privileges in
federal and state law. See Coronado Coal Co., 259 U.S. at 385–90. Instead, the
Court concluded, without limiting its reasoning, that unincorporated unions were §
1983 “persons.” The understanding of the meaning of the term “person” at the
time the Civil Rights Act was passed in 1871 presented no obstacle to the result the
Supreme Court reached in Allee. A union was neither an individual nor a
corporation, yet the Supreme Court held that it still fell within the ambit of the
term “other person.”
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In keeping with a broad reading of Allee, most federal courts to have
confronted the question of whether a non-union unincorporated association is a
“person” under § 1983 have answered in the affirmative. In Barrett v. United
States, the Second Circuit reasoned that an estate administratrix could bring a §
1983 suit on behalf of the estate beneficiaries because they were a group of
individuals “associated for a special purpose.” 689 F.2d 324, 333 (2d Cir. 1982)
(“Unions and unincorporated associations have also been found to possess standing
to assert a § 1983 claim.”). The Second Circuit weighed in again in Jund v. Town
of Hempstead, this time to hold that unincorporated local Republican committees
were proper § 1983 defendants. 941 F.2d 1271, 1279–80 (2d Cir. 1991). And at
least two district courts have adopted this reading. In Gay-Straight All. of
Okeechobee High Sch. v. Sch. Bd. of Okeechobee Cnty., a court in the Southern
District of Florida held that an “unincorporated, voluntary association of students”
at a Florida high school was a § 1983 “person.” 477 F. Supp. 2d 1246, 1248,
1249–51 (S.D. Fla. 2007). A court in the Northern District of Illinois similarly
held that an unincorporated organization representing the interests of a public
housing development could bring a § 1983 suit and noted that “[u]nincorporated
organizations have been found to be ‘persons’ entitled to bring suit under § 1983.”
Cabrini-Green Loc. Advisory Council v. Chi. Hous. Auth., No. 04 C 3792, 2005
WL 61467, at *3 (N.D. Ill. Jan. 10, 2005).
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Moreover, there is a longstanding and robust practice of treating
unincorporated associations as proper § 1983 plaintiffs as a matter of course. The
Eleventh Circuit and an array of other courts have evaluated § 1983 claims brought
by all manner of unincorporated associations seeking to vindicate a diverse array
of constitutional interests -- including the Orlando and Santa Monica local Food
Not Bombs chapters -- without even hinting that they lacked a § 1983 cause of
action. See, e.g., First Vagabonds Church of God v. City of Orlando, 638 F.3d
756, 758 (11th Cir. 2011) (en banc) (Orlando Food Not Bombs); Santa Monica
Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1031 (9th Cir. 2006)
(Santa Monica Food Not Bombs); Rounds v. Or. State Bd. of Higher Educ., 166
F.3d 1032, 1034 (9th Cir. 1999) (Students for Legal government, an
unincorporated association of University of Oregon students); Citizens Against
Tax Waste v. Westerville City Sch., 985 F.2d 255, 256–57 (6th Cir. 1993)
(Citizens Against Tax Waste, an “unincorporated association of property owners in
the Westerville City School District”); Marcavage v. City of New York, 918 F.
Supp. 2d 266, 267 (S.D.N.Y. 2013) (Repent America, an unincorporated
association dedicated to Christian evangelism); Occupy Fresno v. Cnty. of Fresno,
835 F. Supp. 2d 849, 853 (E.D. Cal. 2011) (Occupy Fresno, an unincorporated
association of individuals who wished to assemble in a park); Good News Emp.
Ass’n v. Hicks, No. C-03-3542 VRW, 2005 WL 351743, at *1 (N.D. Cal. Feb. 14,
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2005), aff’d, 223 F. App’x 734 (9th Cir. 2007) (unincorporated association
organized to promote a faith-based concept of “Natural Family and Marriage”);
Nat’l Ass’n of Alzheimer’s Victims & Friends v. Pa. Dep’t of Pub. Welfare, No.
CIV.A. 88-2426, 1988 WL 29338, at *1 (E.D. Pa. Mar. 23, 1988) (National
Association of Alzheimer’s Victims & Friends, an “unincorporated association
founded for the purpose of providing a mutual care and support group for persons
suffering from Alzheimer’s disease and their families and concerned friends”);
Republican Coll. Council of Pa. v. Winner, 357 F. Supp. 739, 740 (E.D. Pa. 1973)
(Republican College Council of Pennsylvania). The same is true of a historically
significant set of § 1983 plaintiffs, the unincorporated local chapters of the
NAACP. See N.A.A.C.P. v. Brackett, 130 F. App’x 648 (4th Cir. 2005).
This body of practice is not a body of holdings and, of course, cannot alter
the meaning of the word “person” as used in the statute. But when combined with
the ordinary meaning of the text, Allee, persuasive interpretations from other
courts, and the body of law informing Congress’s amendments to § 1983 -- all of
which indicate that unincorporated associations are “persons” -- it at least
underscores the need for compelling evidence before we adopt the City’s contrary
interpretation. See Nasrallah v. Barr, 140 S. Ct. 1683, 1697–98, (2020) (Thomas,
J., dissenting) (protesting that when “presented with two competing statutory
interpretations[,] one of which ma[de] sense of” the statute “without upending
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settled practice, and one of which significantly undermine[d the statute] by
removing a vast swath of claims from its reach,” the Supreme Court majority
should have “justif[ied]” its choice of the latter interpretation and “candidly
confront[ed] its implications”); Fowler v. U.S. Parole Comm’n, 94 F.3d 835, 840
(3d Cir. 1996) (While “a practice bottomed upon an erroneous interpretation of the
law is not legitimized merely by repetition,” “general acceptance of a practice must
be considered in any reasoned [statutory interpretation] analysis.”).
The Tenth Circuit, which holds that unincorporated associations cannot sue
under § 1983, stands alone against the trend of treating unincorporated associations
as “persons.” See Lippoldt, 468 F.3d at 1216 (holding that Operation Save
America, an unincorporated association devoted to anti-abortion advocacy, was not
a “person” within the meaning of § 1983); see also Tate v. Univ. Med. Ctr. of So.
Nev., No. 2:09-CV-01748-LDG (NJK), 2013 WL 1249590, at *11 (D. Nev. Mar.
26, 2013) (stating, in a single sentence devoid of analysis, that an unincorporated
association was not a “person” subject to suit under § 1983), rev’d on other
grounds, 617 F. App’x 724 (9th Cir. 2015). The Tenth Circuit’s otherwise
thorough discussion of the legislative history of the 1871 Civil Rights Act, the
background law in 1871, and the 1871 Dictionary Act did not account for the fact
that Congress re-enacted the word “person” in § 1983 twice after intervening
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developments in federal law clarified that unincorporated associations were
“persons.”
At bottom, in enacting § 1983, Congress “intended to give a broad remedy
for violations of federally protected civil rights.” Monell, 436 U.S. at 685. And
the Supreme Court has instructed us that “Congress intended § [1983] to be
broadly construed.” Id. at 686. “[A]ny plan to restrict the scope of § 1983 comes
with a heavy burden of justification -- a burden that is both constitutional and
historical.” Harry A. Blackmun, Section 1983 and Federal Protection of Individual
Rights — Will the Statute Remain Alive or Fade Away?, 60 N.Y.U. L. Rev. 1, 28
(1985). Absent some indication from the Supreme Court that unincorporated
associations are not “persons,” we decline the City’s invitation to upset
longstanding practice recognizing that unincorporated associations are “persons”
that may sue under § 1983. See id. at 3 (warning “that any restriction of what has
become a major symbol of federal protection of basic rights [should] not be made
in irresponsible haste” and that absent strong historical evidence, the scope and
“underlying principles of § 1983 liability should be secure”). We hold that FLFNB
is a person that may bring suit under § 1983.
B.
The second threshold question, also prefatory to an analysis of the merits,
concerns the principle of mootness. The Plaintiffs seek declaratory, injunctive, and
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damages relief as to both the Ordinance and the Park Rule. But well after the
commencement of this litigation, the City repealed the challenged Ordinance. The
Park Rule remains in effect, so the Ordinance’s repeal does not affect the
Plaintiffs’ claims for declaratory, injunctive, and damages relief concerning the
Park Rule. Likewise, the Plaintiffs’ claims for monetary damages arising out of
the application of the Ordinance while it was still on the books remain viable
notwithstanding its subsequent repeal. See, e.g., Checker Cab Operators, Inc. v.
Miami-Dade Cnty., 899 F.3d 908, 916 (11th Cir. 2018) (“Although a case will
normally become moot when a subsequent [law] brings the existing controversy to
an end, when the plaintiff has requested damages, those claims are not moot.”)
(alteration in original) (citation omitted). However, the repeal mooted the
Plaintiffs’ claims for declaratory and injunctive relief against the Ordinance.
“Plainly, if a suit is moot, it cannot present an Article III case or controversy
and the federal courts lack subject matter jurisdiction to entertain it.” Coral
Springs, 371 F.3d at 1328. “Generally, a challenge to the constitutionality of a
statute is mooted by repeal of the statute,” but an exception “applies if there is a
substantial likelihood that the challenged statutory language will be reenacted.” Id.
at 1329. The Plaintiffs have failed to meet their burden of proving that this
exception applies. See Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs,
868 F.3d 1248, 1256 (11th Cir. 2017) (en banc) (“[O]nce the repeal of an
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ordinance has caused our jurisdiction to be questioned, [the plaintiff] bears the
burden of presenting affirmative evidence that its challenge is no longer moot.”)
(alteration in original) (citation omitted).
“The key inquiry. . . is whether the evidence leads us to a reasonable
expectation that the City will reverse course and reenact the allegedly offensive
portion of its Code should this Court” conclude the case is moot. Id.; Coral
Springs, 371 F.3d at 1331 (“Whether the repeal of a law will lead to a finding that
the challenge to the law is moot depends most significantly on whether the court is
sufficiently convinced that the repealed law will not be brought back.”). The
Plaintiffs must present “concrete evidence,” rather than “mere speculation,” that
the City will return to its old ways. Nat’l Advert. Co. v. City of Miami, 402 F.3d
1329, 1334 (11th Cir. 2005).
“[T]hree broad factors” guide our inquiry: (1) “whether the change in
conduct resulted from substantial deliberation or is merely an attempt to
manipulate our jurisdiction”; (2) “whether the government’s decision to terminate
the challenged conduct was unambiguous,” including “whether the actions that
have been taken to allegedly moot the case reflect a rejection of the challenged
conduct that is both permanent and complete”; and (3) “whether the government
has consistently maintained its commitment to the new policy or legislative
scheme.” Flanigan’s Enters., 868 F.3d at 1257. These factors are neither exclusive
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nor dispositive; rather, the question is whether “the totality of [the] circumstances
persuades the court that there is no reasonable expectation that the government
entity will reenact the challenged legislation.” Id.
The first factor does not help the Plaintiffs. The City repealed the ordinance
through its normal legislative process, rather than in “secrecy” or “behind closed
doors.” Id. at 1260. The Commission considered the repeal at a public meeting,
and the Plaintiffs do not provide any reason to believe that “the procedures used by
the City to repeal the Ordinance [do not] reflect the same level of deliberation we
would expect for any other change in policy.” Id. Moreover, the timing of the
repeal does not provide reason to “doubt the City’s sincerity.” Coral Springs, 371
F.3d at 1320. Notably, the City repealed the Ordinance after the district court had
granted final judgment in its favor in this case and before this Court had reversed
that judgment in FLFNB I. This factor weighs heavily against a conclusion that
the City will re-enact the Ordinance.
So does the second factor. The City enforced the Ordinance only for a brief
period (about one month) after its October 22, 2014 enactment; the City did not
enforce the Ordinance between December 2, 2014 and its repeal on November 7,
2017. To be sure, this cessation of enforcement was not the result of an
independent change of heart; rather, on December 2, a state court stayed
enforcement in connection with a separate lawsuit challenging the Ordinance under
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Florida’s Religious Freedom Restoration Act. And the City has not unequivocally
assured that it will not re-enact the Ordinance. See Flanigan’s, 868 F.3d at 1262
(city council had passed a resolution disavowing any intent to re-enact the
challenged ordinance or anything similar). Still, all the Plaintiffs can offer on the
second factor are inferences drawn from the timing of the City’s enforcement
decisions in relation to litigation developments. And these inferences are hardly
ironclad: the City voluntarily continued its policy of non-enforcement even after
the expiration of the state-court stay on January 1, 2015.
At first blush, the Plaintiffs do better on the third factor, for the Park Rule
still remains in effect and implicates the gravamen of Plaintiffs’ complaint by
preventing them from carrying out their expressive food sharing in a public park.
When “a superseding statute leaves objectionable features of the prior law
substantially undisturbed, the case is not moot.” Naturist Soc’y, Inc. v. Fillyaw,
958 F.2d 1515, 1520 (11th Cir. 1992); cf. Ne. Fla. Chapter of Associated Gen.
Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993) (The
enactment of a new statute similar to the one repealed saves a case from mootness
so long as the new statute implicates “the gravamen of [the original] complaint,”
even if the new statute “differs in certain respects from the old one” or
“disadvantage[s] [the plaintiffs] to a lesser degree than the old one.”). Even so, the
City stopped enforcing the Park Rule against FLFNB’s demonstrations at the same
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time it stopped enforcing the Ordinance (on December 2, 2014). In practice, the
City’s commitment to its repeal of the Ordinance and retreat from the policies
behind it has not wavered.
To sum it all up, notwithstanding the City’s failure to repeal the Park Rule or
to unequivocally “disavow[] any intent to reenact” the Ordinance, Flanigan’s, 868
F.3d at 1263, the Ordinance’s regulation of outdoor food distribution is a thing of
the past. The Plaintiffs have not offered “concrete evidence” that the City might
re-enact the Ordinance. Nat’l Advert. Co., 402 F.3d at 1334. Their case depends
almost entirely on conjecture based on the timing of the City’s actions and its
commitment to a related rule. But the timing at best provides a weak reed to
establish an intent to re-enact and at worst undermines the Plaintiffs’ case: the City
repealed the Ordinance after the district court initially upheld it. This sequence
does not betray a strategic repeal to avoid adverse litigation developments. We
lack jurisdiction to address the difficult constitutional questions that attend the
Plaintiffs’ requests for declaratory and injunctive relief against the Ordinance.
These claims are moot.
C.
The third, and last, of the threshold issues concerns Article III standing. The
City argues that all of the Plaintiffs lack standing to assert damages claims based
on the Ordinance and the Park Rule because these regulations, by the City’s
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account, were not enforced against any of the Plaintiffs. According to the City, the
Plaintiffs cannot prove a concrete injury connected to the Ordinance or the Park
Rule. Like the district court before us, we remain unpersuaded. Both the
Individual Plaintiffs and FLFNB have standing to bring damages claims against the
City based on its enforcement of the Ordinance and the Park Rule. They also have
standing to bring claims for declaratory and injunctive relief against the Park Rule.
It is by now almost axiomatic that in order to establish constitutional
standing, a party plaintiff must show three things:
First, the plaintiff must have suffered an injury in fact -- an invasion of
a legally protected interest which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the conduct
complained of -- the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent action of
some third party not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations and
quotation marks omitted and alterations accepted); see also Bischoff v. Osceola
Cnty., 222 F.3d 874, 883 (11th Cir. 2000). Standing for injunctive relief requires
proof of a threat of future injury. Houston v. Marod Supermarkets, Inc., 733 F.3d
1323, 1329 (11th Cir. 2013). If there is a genuine issue of material fact as to
whether the Plaintiffs have standing, summary judgment against them on standing
grounds is inappropriate. See Bischoff, 222 F.3d at 884.
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1. Individual Plaintiffs. The City applied the Ordinance and the Park Rule
to the Individual Plaintiffs insofar as they each participated in a November 7, 2014
FLFNB food-sharing event in Stranahan Park that the police broke up under their
authority drawn from the Ordinance and the Park Rule. Plaintiff Nathan Pim,
testifying on behalf of FLFNB, explained that the police “stopped” the event
“short.” [DE 49-1 at 41] We have already concluded that the Individual Plaintiffs
were engaging in constitutionally protected expression, and the City forced them to
stop and disperse. Undeniably, the Ordinance and the Park Rule injured them by
directly interfering with and barring their protected expression. “[E]very violation
[of a right] imports damage.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796–97,
799 (2021) (citation omitted) (considering it beyond dispute that a college student
suffered an injury in fact when he complied with a college official’s order to stop
speaking and handing out religious literature on campus); cf. Roman Cath. Diocese
of Brooklyn v. Cuomo, 592 U.S. ----, 141 S. Ct. 63, 67–68 (2020) (per curiam
order granting application for injunctive relief) (those who wished to attend
religious services, an exercise of their First Amendment freedoms, would suffer
irreparable injury if barred from attending by state executive order); Elrod v.
Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.”).
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In this way, the Individual Plaintiffs sustained an injury in fact sufficient to
confer standing that does not depend on the arrests of their FLFNB colleagues at
the same demonstrations. What’s more, those arrests provide an additional basis
for standing, even though the Individual Plaintiffs were not personally arrested or
cited. “[S]tanding exists at the summary judgment stage when the plaintiff has
submitted evidence indicating ‘an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution.’” Bischoff, 222 F.3d at 884 (quoting
Wilson v. State Bar of Ga., 132 F.3d 1422, 1428 (11th Cir. 1998)); see also Susan
B. Anthony List v. Driehaus, 573 U.S. 149, 158–59 (2014).
Each Individual Plaintiff has declared under penalty of perjury that he or she
will continue to participate in FLFNB’s protected food-sharing demonstrations in
Stranahan Park, and there is no dispute that this conduct is arguably proscribed by
the Park Rule (and was proscribed by the Ordinance when it was in effect). Of
course, the threat of prosecution must be “genuine,” not “imaginary” or
“speculative,” Leverett v. City of Pinellas Park, 775 F.2d 1536, 1538 (11th Cir.
1985), but the Individual Plaintiffs easily meet this requirement. Each directly
witnessed the police arrest and/or cite their co-demonstrators or others under the
Ordinance and the Park Rule. Citations issued to the Individual Plaintiffs’ fellow
demonstrators referenced both the Ordinance and the Park Rule. These arrests and
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citations of the Individual Plaintiffs’ “companion[s]” render the threat of
enforcement “non-chimerical.” Susan B. Anthony List, 573 U.S. at 159
(describing Steffel v. Thompson, 415 U.S. 452, 459 (1974)); cf. Bischoff, 222 F.3d
at 884–85 (plaintiffs who were threatened with arrest and whose co-demonstrators
were actually arrested suffered injury in fact).
2. FLFNB. FLFNB does not claim that it has associational standing to sue
on behalf of its members; rather it claims “standing in its own right.” Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982). An advocacy organization
like FLFNB suffers injury in fact when the defendant’s conduct “perceptibly
impair[s] [the organization’s] ability” to carry out its mission, including by causing
“drain on the organization’s resources.” Id. at 379; see also Fla. State Conf. of
N.A.A.C.P. v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008) (“[A] n
organization has standing to sue on its own behalf if the defendant’s illegal acts
impair its ability to engage in its projects by forcing the organization to divert
resources to counteract those illegal acts.”).
It is undeniable, as the district court found, that the City’s enforcement of the
Ordinance and the Park Rule “impair[ed]” FLFNB’s “ability to engage in its
projects” -- food-sharing demonstrations to criticize society’s allocation of
resources between food and war -- in a number of ways. Most directly, the police
shut down an FLFNB food-sharing demonstration on November 7, 2014. This
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blocked FLFNB from holding its traditional post-meal organizational meeting in
Stranahan Park and cut short an exercise of its chief means of advocacy. See
Havens, 455 U.S. at 379 (plaintiff organization suffered injury where challenged
practices impaired its ability “to provide counseling and referral services for low-
and-moderate-income homeseekers”). Moreover, the challenged regulations
caused FLFNB to expend resources in the form of volunteer time, including efforts
to collect bail money and organize legal representation for its members who were
arrested under the Ordinance and the Park Rule. The threat of arrest also has
practically hindered would-be volunteers from participating in FLFNB
demonstrations. Thus, for example, FLFNB had to stop accepting high school
volunteers because it did not want to risk subjecting them to criminal liability.
These injuries will continue, because FLFNB continues to hold demonstrations
under the threat of Park Rule enforcement.
FLFNB volunteers who would have normally worked on preparing for food-
sharing demonstrations had to divert their energies to advocacy activities such as
attending City meetings and organizing protests against the Ordinance, as well as
arranging for transportation and supplies for these events. FLFNB’s Rule 30(b)(6)
representative unambiguously testified that this “drew away time and resources
from free time we would be spending on preparing for . . . feedings.” See Fla.
State Conf. of N.A.A.C.P., 522 F.3d at 1165–66 (organization suffered injury in
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fact from anticipated diversion of “personnel and time to educating volunteers and
voters on compliance with” a challenged law). In the face of these injuries, the fact
that FLFNB has continued to hold food sharings in Stranahan Park since the
enactment of the Ordinance does not deprive it of standing.
Nor, as the City suggests, does the fact that FLFNB is an informal
organization with no formative documents, formal leadership offices, or written
proof of membership. The City has not offered any authority to suggest that an
unincorporated association’s informal structure somehow renders it incapable of
sustaining actual and concrete injury. To the contrary, unincorporated associations
by their nature lack a charter and often lack formal organizational structures. See
S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 931 (9th Cir. 2014) (“[A]n
‘unincorporated association’ is a ‘voluntary group of persons, without a charter,
formed by mutual consent for the purpose of promoting a common objective.’”)
(citation omitted). This does not block them from seeking redress for injuries they
may sustain. See Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566, 1571 (11th
Cir. 1991) (“Empire is an unincorporated association. As such, it has standing to
allege . . . injuries suffered directly by the organization.”). On this record as a
whole, FLFNB’s relaxed organizational style does not denude it of standing.
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III.
A.
To take stock so far, the Plaintiffs have standing to bring the following
justiciable claims: for declaratory and injunctive relief against the Park Rule, and
for compensatory damages with respect to both the Ordinance and the Park Rule.
Our next step would normally be to examine the merits of the Plaintiffs’ arguments
that the Ordinance and the Park Rule are unconstitutional. But there is a twist here.
As we see it, we need not, and therefore do not, pass upon the validity of the
Ordinance. The Ordinance was repealed on November 7, 2017. And the validity,
vel non, of the Ordinance has no bearing on the Plaintiffs’ claims for past damages.
This is because the Plaintiffs’ damages claims with respect to the Ordinance -- the
only Ordinance claims left -- are coextensive with their damages claims arising out
of the enforcement of the Park Rule. The City enforced the Ordinance and the
Park Rule as one, so reviewing the constitutionality of the Park Rule is all we must
do in order to determine whether the Plaintiffs may be entitled to damages based
on the City’s enforcement actions. Because, as we will explain, the Park Rule
violates the First Amendment as applied to the Plaintiffs, a ruling on the Ordinance
provides no further benefit to the Plaintiffs. Deciding the constitutionality of the
repealed Ordinance would therefore be an unnecessary exercise of our authority to
interpret the Constitution. “Generally, we don’t answer constitutional questions
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that don’t need to be answered.” Burns v. Town of Palm Beach, 999 F.3d 1317,
1348 (11th Cir. 2021); see Lyng v. Nw. Indian Cemetery Protective Ass’n, 485
U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional questions in advance of
the necessity of deciding them.”).
To explain, the core of the Plaintiffs’ theory of damages is that they were
forced to exercise their First Amendment rights under the fear of City sanction.
The Ordinance and the Park Rule operated together to inflict this fear, so reserving
judgment on the Ordinance will not affect the Plaintiffs’ pursuit of compensatory
damages. The Plaintiffs explain that they “fear future harassment, arrest and
prosecution for continuing to engage in their weekly demonstrations at Stranahan
Park.” They also complain of associated “impairment of reputation, emotional
distress, and loss of protected constitutional freedoms.” Thus, for example,
plaintiff William Toole declared that “[i]f the City resumes enforcement of the
Ordinance and Park Rule, as I anticipate it will, I and other members of [FLFNB]
will continue to face the possibility of receiving criminal citations for engaging in
political expression, citations carrying a potential penalty of a $500.00 fine, 60
days in jail, or a combination of the two.” As an organization, plaintiff FLFNB
suffered similar damages because “people who want to associate with [FLFNB] for
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purposes of engaging in [its] weekly political demonstrations do so by assuming a
risk of citation or arrest.”
A violation of the Ordinance and a violation of the Park Rule each carry the
same penalty. The City could impose the specific penalties Toole and the other
plaintiffs fear -- a $500.00 fine and 60 days in jail -- either for a violation of the
Ordinance (when it was in effect) or for a violation of the Park Rule. Those
convicted of violating the Ordinance “shall . . . be punished as provided in Section
1-6 . . . of the Code.” § 47-34.2(C). Section 1-6 of the Code provides for a $500
fine or 60-day imprisonment punishment. City Code § 1-6(c).
Meanwhile, Park Rule 2.2 prohibits social services in City parks without the
City’s permission. Section 11.0 of the Park Rules deals with enforcement.
Specifically, § 11.3, entitled “Trespass,” says that “[a]ny person or group found in
violation of [any Park Rule] shall be ordered to leave all [City parks] for a
minimum 24-hour period. Any person who fails to leave all City [parks] at the
time requested may be arrested and prosecuted for trespassing or prosecuted under
other existing ordinances.” This directs us to the “Trespassing” section of the City
Code, which incorporates the punishment found in City Code § 1-6, the same
penalty section incorporated into the Ordinance: “[v]iolators of this section shall be
deemed trespassers and subject to punishment as provided in section 1-6 of this
Code.” City Code § 16-26 (Trespassing). Just as it does for violations of the
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outdoor food distribution Ordinance, Section 1-6 provides for a fine up to $500 or
up to 60 days in jail for Park Rule violations. City Code § 1-6(c). This identity in
the available sanction makes sense, because the City enacted the Ordinance at least
in part in an effort to bring itself into compliance with the 2000 state-court
injunction against the Park Rule, “thereby permitting the resumption of
enforcement of the Park Rule.”
To support their fears of enforcement, the Plaintiffs identify five instances
when the City arrested or cited fellow demonstrators in the Plaintiffs’ presence.
The arrest documents for four of these demonstrators cite both the Ordinance and
the Park Rule. Thus, the Park Rule was an important element in most of the arrests
that give rise to the Plaintiffs’ claimed damages, namely their fear of arrest and
prosecution for engaging in protected expression. Indeed, on November 7, 2014,
the same day as the initial arrests, the City’s Public Information Officer announced
that the City would not allow food sharing in Stranahan Park even pursuant to the
conditions of the Ordinance “because social services activities are not allowed to
be conducted in our parks per Rule 2.2 of the Parks and Recreation Rules and
Regulations.” The City’s policy of policing food sharing in Stranahan Park -- the
source of the Plaintiffs’ fear-based damages -- did not depend on the Ordinance. In
the City’s own words, it arose alternatively, and independently, from the Park
Rule.
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It is true that the record does not indicate that the City ever brought any
formal prosecutions under the Park Rule. But the City ultimately dropped all but
one of the prosecutions it brought under the Ordinance (one individual pleaded no
contest and served ten hours of community service), so the absence of filed Park
Rule prosecutions does not drive a meaningful wedge between any damages the
Plaintiffs sustained from the enforcement of the Park Rule and any monetary
damages arising from the enforcement of the Ordinance.
The Ordinance and the Park Rule operated in tandem and were enforced
together against FLFNB’s demonstrations. The Plaintiffs acknowledge as much in
their complaint: “[v]iolation of the Park Rule is a violation of the [O]rdinance
because both require written permission from the City to share food in a City
park.” The Plaintiffs’ alleged damages all stem from a single root: the City’s
enforcement of the Park Rule.2 Succeeding in their constitutional claim against the
Park Rule would allow the Plaintiffs to proceed in their quest for damages based
on this enforcement. Succeeding in their constitutional claim against the
2
Some of the Plaintiffs’ filings also might be read to claim damages that do not relate to fears of
arrest, but rather to costs incurred in protesting the enactment of the Ordinance. Even these
alleged damages stem from the enforcement of the Park Rule. The materials for one of the City
meetings FLFNB attended in protest explained that the City wished to pass the Ordinance so that
it could resume enforcement of the Park Rule. So FLFNB allegedly expended resources to fight
the Park Rule just as much as it did to fight the Ordinance. Of course, nothing in this opinion
should be taken to suggest that the Plaintiffs will ultimately be able to prove compensatory
damages or even the required causation. We observe only that the damages, as alleged, stem as
much from the Park Rule as they do from the Ordinance.
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Ordinance would not entitle them to anything more because their Ordinance-based
damages theories invoke the same set of harms. Cf. Patterson v. Balsamico, 440
F.3d 104, 113–14 (2d Cir. 2006) (nominal damages award was “contingent on the
injuries suffered by [the plaintiff] rather than the number of statutes under which
[the defendant was] liable”).
And as we shall see, it is not especially difficult to conclude that the Park
Rule cannot pass First Amendment muster as applied to these Plaintiffs. 3 The
Ordinance, however, presents a closer and more difficult question. On the one
hand, it presents serious constitutional issues arising out of its arduous permitting
process and a fee that can rise as high as $6,000 subject to City officials’ unfettered
discretion. And, at least arguably, the Ordinance effectively bans the Plaintiffs’
expression in all City parks; the City did not take advantage of narrower potential
alternatives such as allowing demonstrations in particular parks or permitting
organizations to hold a limited number of annual food-sharing events as of right.
See First Vagabonds Church of God, 638 F.3d at 758 (upholding similar Orlando
ordinance with these features). On the other hand, the City has a substantial
3
The Plaintiffs also purport to bring a facial challenge to the Park Rule. But they have not
shown that the Park Rule prohibits a substantial amount of protected conduct, especially since
most of the social service park uses the Park Rule regulates will have no expressive component
at all. See Doe v. Valencia Coll., 903 F.3d 1220, 1232 (11th Cir. 2018). Therefore, we follow
FLFNB I and treat the Plaintiffs’ challenge only as an as-applied one. See 901 F.3d at 1241
(“Whether food distribution or sharing can be expressive activity protected by the First
Amendment under particular circumstances is a question to be decided in an as-applied
challenge.”) (citation omitted and alterations accepted).
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interest in managing its park property, see id. at 761, and the Ordinance (unlike the
Park Rule) provides clear and objective standards to guide the City’s permitting
decisions, such as the requirement that each food sharing use must be at least 500
feet away from any other.
The resolution of these issues does not matter here. The Ordinance has been
repealed, and its validity does not bear on the Plaintiffs’ quest for damages. Since
the repeal of the Ordinance renders its validity a wholly academic question, in
keeping with the judicial restraint principals of constitutional avoidance, we do not
answer it. 4 See Lyng, 485 U.S. at 446 (lower courts should have answered a
constitutional question only if “a decision on that question could have entitled [the
plaintiffs] to relief beyond that to which they were entitled on their statutory
claims”); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (courts “will
not pass upon a constitutional question although properly presented by the record,
if there is also present some other ground upon which the case may be disposed
of”); Boss Cap., Inc. v. City of Casselberry, 187 F.3d 1251, 1254 (11th Cir. 1999)
(“[I]t is our custom not to decide difficult constitutional questions unless we
must.”), abrogated on other grounds by City of Littleton v. Z.J. Gifts D-4, L.L.C.,
541 U.S. 774 (2004).
4
For similar reasons, we do not reach the Plaintiffs’ alternative theories for why the Park Rule is
unconstitutional, namely their expressive association, vagueness, and prior restraint theories.
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B.
Finally, we come to the merits of the Plaintiffs’ as-applied challenge to the
Park Rule. Our review of the district court’s summary judgment holding that the
Park Rule was constitutional is de novo. FLFNB I, 901 F.3d at 1239. We draw all
reasonable inferences in the light most favorable to the Plaintiffs, the non-moving
parties. Id.
But first, we pause to clarify what is not up for debate in this appeal. In
FLFNB I, a panel of this Court held that FLFNB’s food-sharing demonstrations in
Stranahan Park are expressive conduct protected by the First Amendment. Id. at
1245. This holding binds us under both the law of the case doctrine, see Rath v.
Marcoski, 898 F.3d 1306, 1312 (11th Cir. 2018), and our Court’s prior precedent
rule, Andrews v. Biggers, 996 F.3d 1235, 1236 (11th Cir. 2021). The sole
remaining question for us, then, is whether the Park Rule’s regulation of this
protected conduct passes First Amendment scrutiny.
To answer this question, we must first decide whether the Park Rule is
content neutral or content based, for a content-neutral regulation of expressive
conduct is subject to intermediate scrutiny, while a regulation based on the content
of the expression must withstand the additional rigors of strict scrutiny. See Texas
v. Johnson, 491 U.S. 397, 403–04 (1989); Burk v. Augusta-Richmond Cnty., 365
F.3d 1247, 1255 (11th Cir. 2004). As we explain, the Park Rule is content neutral.
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So, we only apply intermediate scrutiny. Specifically, we apply the United States
v. O’Brien, 391 U.S. 367 (1968), test for content-neutral regulations of expressive
conduct and ask whether the Park Rule “is narrowly drawn to further a substantial
governmental interest . . . unrelated to the suppression of free speech.” Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984) (citing O’Brien, 391
U.S. at 377).
Alternatively, we evaluate the Park Rule as a time, place, and manner
restriction on expressive conduct. This sort of law also must be “narrowly tailored
to serve a significant governmental interest” and “leave open ample alternative
channels for communication of the information.” Clark, 468 U.S. at 293. These
standards substantially overlap and yield the same result in this case. Either way,
the Park Rule violates the First Amendment as applied to the Plaintiffs’ food-
sharing events.
1. Content Neutrality. Johnson instructs us that a regulation of expressive
conduct is content neutral if the justification for the regulation is unrelated to the
suppression of free expression. 491 U.S. at 403. Even a content-neutral purpose,
however, cannot save a regulation that “‘on its face’ draws distinctions based on
the message a speaker conveys.” Reed v. Town of Gilbert, 576 U.S. 155, 163–64
(2015).
The Park Rule does not draw content-based distinctions on its face:
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Parks shall be used for recreation and relaxation, ornament, light and
air for the general public. Parks shall not be used for business or social
service purposes unless authorized pursuant to a written agreement with
City. As used herein, social services shall include, but not be limited
to, the provision of food, clothing, shelter or medical care to persons in
order to meet their physical needs.
The Rule applies not just to food sharing events but also to a host of other social
services, including the provision of clothing, shelter, and medical care. These
services usually do not involve expressive conduct. Even most social-service food
sharing events will not be expressive. See FLFNB I, 901 F.3d at 1242 (holding
that FLFNB’s food sharing was protected expressive conduct only after a close
examination of the specific context surrounding the events). That the Park Rule
regulates a range of activity, most of which has no expressive content at all,
suggests its application does not vary based on any message conveyed. The Rule
does not single out messages which relate to food or the importance of sharing
food with the homeless.
Instead, the Park Rule’s application to food sharing (and other services)
turns on whether the services are provided “in order to meet [the recipients’]
physical needs.” This distinction does not depend on the content of the message
associated with any food sharing that happens to be expressive. The Park Rule (at
least in the City’s view) applies to FLFNB’s sharing of low-cost food with the
homeless in order to communicate a message about the societal allocation of
resources between food and the military, but it would also apply to an organization
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that shared low-cost food with the homeless in order to communicate that the
City’s homeless shelters serve food that lacks vital nutrients. It would likewise
apply to an organization that shared low-cost food with struggling veterans in order
to emphasize the debt our society owes for their sacrifice, and so on. Indeed, it
would apply to organizations that share food with those in need to communicate
any number of messages. Simply put, the Rule does not “draw[] distinctions based
on [any] message” food-sharers convey. Reed, 576 U.S. at 163.
The Plaintiffs rely on Reed’s allusion to the possibility that some facial
distinctions might be content based because they define “regulated speech by its
function or purpose” to argue that the Park Rule’s social-service-purpose
distinction is content based. Id. at 163–64. But we have characterized this
language in Reed as “dicta.” Harbourside Place, LLC v. Town of Jupiter, 958 F.3d
1308, 1319 (11th Cir. 2020). In any event, as just described, the purpose on which
the regulatory definition turns -- sharing food to provide for physical welfare -- is
not one that draws a distinction based on the content of any expression. See
Recycle for Change v. City of Oakland, 856 F.3d 666, 671 (9th Cir. 2017)
(holding, after Reed, that a regulation that applied to unattended donation boxes
that collected personal items “for the purpose of distributing, reusing, or recycling
those items” did not turn on “communicative content”); Josephine Havlak
Photographer, Inc. v. Vill. of Twin Oaks, 864 F.3d 905, 915 (8th Cir. 2017)
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(regulation that applied to photography for commercial purposes, but not non-
commercial purposes, was not content based under Reed). To be sure, it seems
likely that most expressive food sharings subject to the Park Rule’s regulation will
involve some sort of message related to the importance of sharing food with those
in need. “But a facially neutral law does not become content based simply because
it may disproportionately affect speech on certain topics.” McCullen v. Coakley,
573 U.S. 464, 480 (2014).
Likewise, the City’s justifications for the Park Rule do not relate to content.
“A regulation that serves purposes unrelated to the content of expression is deemed
[content] neutral, even if it has an incidental effect on some speakers or messages
but not others.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The
City enacted the Park Rule, and the Ordinance designed to facilitate its
enforcement, in order to address a series of problems associated with large group
food events in public parks, including loitering and crowds, trash build-up, noise,
and food safety issues, as well as to ensure that similar uses of public property did
not concentrate in one area. Citizens had complained about some of these
problems in connection with food-sharing events. In January 2014, the City
Commission held a workshop on homelessness in the community where
stakeholders debated public food distribution and related topics. More generally,
the Ordinance states that its purpose is “to regulate social service facilities in order
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to promote the health, safety, morals and general welfare of the residents of the
City of Fort Lauderdale.” (This statement illuminates the Park Rule’s purpose as
well, since the City enacted the Ordinance so that it could resume enforcement of
the Park Rule.)
These concerns, which boil down to an interest in maintaining public parks
and other property in a pleasant, accessible condition, are not related to the
suppression of the Plaintiffs’ (or any other party’s) expression, so they are content
neutral. See First Vagabonds Church of God, 638 F.3d at 762 (“[T]he interest of
the City in managing parks and spreading large group feedings to a larger number
of [locations] is unrelated to the suppression of speech.”); see also McCullen, 573
U.S. at 480–81 (public safety, the need to protect security, and regulation of
congestion are content-neutral concerns); Ward, 491 U.S. at 797 (“The city enjoys
a substantial interest in ensuring the ability of its citizens to enjoy whatever
benefits the city parks have to offer, from amplified music to silent meditation.”).
One could phrase the City’s motives in terms that are perhaps less flattering.
The district court said the City was concerned “that food sharing as a social service
attracts people who act in ways inimical to” keeping parks safe, clean and
enjoyable; the Plaintiffs put a finer point on it and accuse the city of “deter[ring]
homeless and hungry people from parks because of how they might act.” Fort
Lauderdale’s elected officials seem to have decided that sharing food with large
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groups of homeless people in public parks causes problems that make those parks
less useful to the broader public. But even accepting these descriptions does not
alter the First Amendment analysis, which at this stage asks only whether the
City’s desire to prevent groups of homeless people from gathering in public parks
is a goal related to the content of the Plaintiffs’ or any other party’s expression.
The First Amendment does not permit us to go further and comment upon whether
this objective is virtuous public policy. We hold simply that the Park Rule is not
related to expressive conduct; it has nothing to do with the Plaintiffs’ critique of
society’s allocation of scarce resources between welfare and defense spending.
The Plaintiffs are wrong to say that the City’s concern with the behavior of
the crowds that gather at FLFNB expressive food-sharing events is a justification
related to “[l]isteners’ reaction to speech,” which they correctly point out would
not be “a content-neutral basis for regulation.” Forsyth Cnty. v. Nationalist
Movement, 505 U.S. 123, 134 (1992). Forsyth and related cases stand for the
principle that a city may not regulate speech because it “cause[s] offense or
ma[kes] listeners uncomfortable,” McCullen, 573 U.S. at 481, or because it might
elicit a violent reaction or difficult-to-manage counterprotests, Forsyth Cnty., 505
U.S. at 134. The City is concerned not that FLFNB’s expression will offend or
cause violence, but that it will cause the gathering of crowds -- participants in the
meals, rather than a bystander audience -- and associated logistical problems such
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as the accumulation of trash. Addressing the practical problems crowds pose is a
content-neutral concern. See McCullen, 573 U.S. at 481 (“Whether or not a single
person reacts to abortion protestors’ chants or petitioners’ counseling, large crowds
outside abortion clinics can still compromise public safety, impede access, and
obstruct sidewalks.”); cf. Coal. for the Abolition of Marijuana Prohibition v. City
of Atlanta, 219 F.3d 1301, 1317–18 (11th Cir. 2000) (a regulation that
distinguished between events based on whether they would require municipal
services to “accommodate . . . large public gatherings” was “justified without
reference to the content of the regulated speech”) (emphasis omitted).
2. Intermediate Scrutiny. Since the Park Rule is a content-neutral regulation
of expressive conduct, it is subject only to intermediate scrutiny, not the more
demanding requirements of strict scrutiny. Specifically, under United States v.
O’Brien, the Park Rule may regulate the Plaintiffs’ expressive food sharing only so
long as food sharing “itself may constitutionally be regulated” (no one has
suggested it may not) and the Park Rule “is narrowly drawn to further a substantial
governmental interest” that is “is unrelated to the suppression of free speech.”
Clark, 468 U.S. at 294 (1984) (citing O’Brien, 391 U.S. 367, 377 (1968)).
The City does have a “substantial interest in ensuring the ability of [its]
citizens to enjoy whatever benefits the city parks have to offer.” Ward, 491 U.S. at
797. More specifically, the Park Rule seeks to further the City’s “substantial
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interest in managing park property and spreading the burden of large group
feedings throughout a greater area.” First Vagabonds Church of God, 638 F.3d at
762. As we have explained, the regulations are concerned with avoiding
concentration of similar park uses and with sanitation and other logistical problems
that crowded food distribution events cause -- substantial government interests that
are unrelated to the suppression of free speech.
However, the Park Rule is not narrowly tailored to the City’s interest in park
maintenance. Under intermediate scrutiny, the regulation “‘need not be the least
restrictive or least inclusive means’ of serving the government’s interests.”
McCullen, 573 U.S. at 486 (citation omitted). Rather, “the requirement of narrow
tailoring is satisfied ‘so long as the regulation promotes a substantial governmental
interest that would be achieved less effectively absent the regulation,’” and “the
means chosen are not substantially broader than necessary to achieve the
government’s interest.” Ward, 491 U.S. at 799–800 (citation omitted and
alterations accepted).
Fatally, the Park Rule imposes a permitting requirement without
implementing any standards to guide City officials’ discretion over whether to
grant a permit. The Rule bans social-service food sharings in City Parks “unless
authorized pursuant to a written agreement with City.” That’s it. Under the terms
of the Rule, a City official may deny a request for permission to hold an expressive
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food sharing event in the Park because he disagrees with the demonstration’s
message, because he doesn’t feel like completing the necessary paperwork,
because he has a practice of rejecting all applications submitted on Tuesdays, or
for no reason at all. In a word, the complete lack of any standards allows for
arbitrary enforcement and even for discrimination based on viewpoint.
Generally, subjecting protected expression to an official’s “unbridled
discretion” presents “too great” a “danger of censorship and of abridgment of our
precious First Amendment freedoms.” Se. Promotions, Ltd. v. Conrad, 420 U.S.
546, 553 (1975). “[D]istaste for [such] censorship -- reflecting the natural distaste
of a free people -- is deep-written in our law.” Id. It comes as no surprise, then,
that “a long line” of Supreme Court decisions makes it abundantly clear that a
regulation which “makes the peaceful enjoyment of freedoms which the
Constitution guarantees contingent upon the uncontrolled will of an official -- as
by requiring a permit or license which may be granted or withheld in the discretion
of such official -- is an unconstitutional censorship or prior restraint upon the
enjoyment of those freedoms.” Shuttlesworth v. City of Birmingham, 394 U.S.
147, 151 (1969) (quoting Staub v. City of Baxley, 355 U.S. 313, 322 (1958)).
The facts of Shuttlesworth illustrate the point. A Birmingham, Alabama
ordinance empowered the city commission to deny parade permits whenever they
thought it necessary for “public welfare,” “decency,” “morals, or “convenience.”
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Id. at 148–50. In 1963, city officials used this ordinance to arrest and prosecute
participants in a peaceful civil rights march held without a license, including Rev.
Fred Shuttlesworth. Id. But the Supreme Court invalidated Shuttlesworth’s
conviction. Id. at 159. The risk that the ambiguity in the licensing regime would
permit officials to target individuals, like Shuttlesworth, on the basis of their
disfavored expression was too great for the First Amendment to bear.
The reasoning of these prior restraint cases controls the as-applied narrow
tailoring inquiry we conduct in this case: “[e]xcessive discretion over permitting
decisions is constitutionally suspect because it creates the opportunity for
undetectable censorship and signals a lack of narrow tailoring.” Burk, 365 F.3d at
1256. The Park rule does not even supply malleable standards like those found in
Shuttlesworth; it doesn’t provide any standards at all. As applied to the Plaintiffs’
protected expression, the Park Rule fails First Amendment scrutiny.
Moreover, the Park Rule’s sweeping grant of discretion to City permitting
officials is not necessary to further the City’s interests in crowd control and park
conservation. The government “may not regulate expression in such a manner that
a substantial portion of the burden on speech does not serve to advance its goals.”
McCullen, 573 U.S. at 486 (citations omitted). Of course, the mere availability of
less restrictive alternatives will not cause a regulation to fail narrow tailoring
scrutiny, and we may not “replace the City as the manager of its parks.” First
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Vagabonds Church of God, 638 F.3d at 762 (citation omitted and alterations
accepted). But an abundance of targeted alternatives may indicate that a regulation
is broader than necessary. See McCullen, 573 U.S. at 490–94 (relying in part on
available alternatives to conclude that a regulation of speech near abortion clinics
burdened more speech than necessary).
The Park Rule amounts to an outright ban on public food sharing in all of
Fort Lauderdale’s parks; any exception is subject only to the standardless whims of
City permitting officials. For a model of a narrower regulation targeting more or
less the same interests, the City need only have looked 218 miles to the northwest.
In First Vagabonds Church of God, we upheld an Orlando regulation that permitted
public food distribution without a license in sixty-six parks. 638 F.3d at 761. For
the group of forty-two parks in the central downtown district near City Hall, each
organization was entitled to two licenses per year. Id. And the Orlando ordinance
applied only to events likely to attract twenty-five or more people. Id. at 759.
Fort Lauderdale offers no reason it could not have similarly narrowed the
Park Rule’s permission requirement or tailored it in some other way. Thus, for
example, in addition to adding “narrowly drawn, reasonable and definite
standards” to guide officials’ permitting discretion, Forsyth Cnty., 505 U.S. at 133(citation omitted), the City could have required permission only for events likely to
attract groups exceeding a certain size. Or it could have required City permission
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only for certain parks. Central to the City’s conclusion that public food
distribution causes problems in parks is a collection of seven citizen and
organizational complaints about food-sharing events. Six of these are specific to
the downtown Fort Lauderdale area. The City could have required permission only
in downtown parks or designated limited areas within parks for sharing food. See
McCullen, 573 U.S. at 493 (evidence of disruptive demonstrations at a single
Boston clinic did not justify a statewide regulation of demonstrations at abortion
clinics); see Clark, 468 U.S. at 295 (rejecting challenge to a limited ban on
camping in Washington, D.C.’s Lafayette Park as applied to an anti-homelessness
demonstration; the Park Service allowed camping in designated areas in other
parks); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956–57 (11th Cir. 1999)
(upholding ban on begging that applied only to a five-mile “designated, limited
beach area” and did not ban begging in “many other public fora”). The City also
might have allowed groups like FLFNB a limited annual number of food
distribution events in Stranahan Park as of right. Again, we do not presume to tell
the City exactly how it should manage its parks; all this is only to say that the Park
Rule’s utterly standardless permission requirement is “substantially broader than
necessary to achieve” the City’s interest in maintaining its parks. Ward, 491 U.S.
at 782–83. The Park Rule therefore cannot qualify as a valid regulation of the
Plaintiffs’ expressive conduct.
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Alternatively, we evaluate the Park Rule under Clark’s standard for time
place, and manner restrictions. A content-neutral law regulating the time, place,
and manner of expression in a public forum must be “narrowly tailored to serve a
significant governmental interest” and “leave open ample alternative channels for
communication of the information.” Clark, 468 U.S. at 293. Stranahan Park is “an
undisputed public forum.” FLFNB I, 901 F.3d at 1238. We underscore that parks
“occupy a special position in terms of First Amendment protection because of their
historic role as sites for discussion and debate.” McCullen, 573 U.S. at 476
(quotation omitted); United States v. Grace, 461 U.S. 171, 177 (1983) (Public
parks are “historically associated with the free exercise of expressive activities.”);
Hague, 307 U.S. at 515 (opinion of Roberts, J.) (“Wherever the title of streets and
parks may rest, they have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges, immunities,
rights, and liberties of citizens.”). “[T]he government’s ability to permissibly
restrict expressive conduct” in Stranahan Park is therefore “very limited.” Grace,
461 U.S. at 177. But the government nevertheless “may enforce reasonable time,
place, and manner regulations” on expression in the park. See id.62
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As a practical matter, there is little difference between this standard and the
O’Brien test we have just discussed, and, in any event, they yield the same result in
this case. Clark, 468 U.S. at 298 (observing that the O’Brien standard “is little, if
any, different from the standard applied to time, place, or manner restrictions”); see
First Vagabonds Church of God, 638 F.3d at 761–62 (analyzing a similar
ordinance under both standards). Both require that the regulation be narrowly
tailored to serve a significant government interest. Clark, 468 U.S. at 293, 298.
Just as it does under O’Brien, the Park Rule’s grant of standardless discretion to
the City’s permitting officials causes it to fail time, place, and manner scrutiny:
“[a] government regulation that allows arbitrary application is ‘inherently
inconsistent with a valid time, place, and manner regulation because such
discretion has the potential for becoming a means of suppressing a particular point
of view.’” Forsyth Cnty., 505 U.S. at 130–31 (quoting Heffron v. Int’l Soc’y for
Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981)); Burk, 365 F.3d at 1256(“[T]ime, place, and manner regulations must contain narrowly drawn, reasonable
and definite standards, to guide the official’s decision and render it subject to
effective judicial review.”) (internal quotation marks and citations omitted). Since
the Park Rule fails because it is not narrowly tailored, we need not address whether
it leaves open ample alternative channels for the communication of the Plaintiffs’
message.
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The long and short of it is that the Park Rule as applied to the Plaintiffs’
expressive food sharing activities violates the First Amendment. Accordingly, we
REVERSE the district court’s summary judgment order and REMAND for
further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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HULL, Circuit Judge, with whom LAGOA, Circuit Judge, joins, concurring:
I concur in full in the panel opinion. I write separately to emphasize that this
is the second appeal in this case and that our panel is bound by this Court’s holding
as to whether the plaintiff FLFNB’s food-sharing conduct is sufficiently expressive
to warrant First Amendment protection. See Fort Lauderdale Food Not Bombs v.
City of Fort Lauderdale, 901 F.3d 1235 (11th Cir. 2018).
In that prior appeal, this Court held that, “on this record,” the nature of the
plaintiff FLFNB’s weekly food-sharing activity in a public park, “combined with
the factual context and environment in which it was undertaken,” led to the
conclusion that FLFNB’s food sharing conduct “express[es] an idea through [that]
activity,” conveys “some sort of message” to a reasonable observer, and constitutes
“a form of protected expression” under the First Amendment. Id. at 1240–45
(quotation marks omitted). This holding relied on a well-developed factual record
about the plaintiff FLFNB’s many years of food-sharing events (1) that are held in
the City’s Stranahan Park, a public forum where the homeless congregate, and
(2) that are accompanied by FLFNB’s banners and distribution of literature. Id.As the panel opinion points out, “most social-service food sharing events will not
be expressive.” Maj. Op. at 51. Here, however, we are bound by the holding in
the prior appeal that was based on a particular and extensive list of factual
circumstances.
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