Thursday, April 14, 2011

Spreading the Burden

The recent 11th Circuit opinion in First Vagabonds Church of God v. City of Orlando made me angry enough to spend yesterday thinking about injustice instead of approaching exams.  I am troubled the court granted the en banc hearing for merely one of several serious claims.  The fundamental rights of free assembly, freedom of expression,  free exercise of religion, due process, and equal protection apply to all Americans; the Court should especially take care in their analysis when the fundamental rights of two politically unpopular minority groups are at stake.

However,  given that this is a blog entry and I have lots of other things to get done before the weekend, I will restrict my analysis to the Free Speech Clause analysed in the recent opinion.

There is no dispute regarding the element of state action; city ordinances concerning activity within city parks are proper.  Similarly, Food Not Bombs was clearly engaged in expressive conduct.  Food Not Bombs (FNB) is a nation-wide political movement that promotes peace, veganism, and community self-reliance.  Because their expressive content is both peaceful and political, it falls neatly into the category of protected speech.

Content Neutral?

In the lower courts, the city claimed that the ordinance (Orlando, Fla., Code § 18A.01(24)) was content-neutral.  While the ordinance is content-neutral on its face, FNB could argue that it discriminates based on the content of their expression.  (If the court agrees that FNB was engaged in "expressive conduct," the content of the conduct is distinguished by the law.  The regulation applies only to groups distributing food. If another political group began having weekly free-clothing distribution events, the group would not be subject to the regulation.)

According to  Arkansas Writers' Project, Inc. v. Ragland. Content regulation of protected expression is measured by a compelling interest test derived from equal protection analysis: the city must show that its regulation is necessary to serve a compelling governmental interest and that the ordinance is narrowly drawn to achieve that end.

In Arkansas, the Supreme Court found that even though there was no evidence of motive to suppress expression, the state action (a tax) burdened rights protected by the First Amendment by discriminating against a small group (of magazines, distinguished by content) within the larger group (the press).  Similarly, the expression FNB's meals (political expression, distinguished by content) are one type of political speech allowed in the public forum.  Other political groups distributing to groups are not affected by the regulation.

Of course, the city would have analogized the case more closely to Ward v. Rock Against Racism,  where the Supreme Court held that restrictions of a public forum are content-neutral simply if they are justified without reference to the content of the expression.

Important/Substantial Government Interest?

Even if FNB conceded that the ban was content neutral, the Court's reliance on Clark v. Cmty. for Creative Nonviolence is misplaced.  Clark is easily distinguished.  In Clark, the Supreme Court found that “there is a substantial Government interest in ”conserving park property,” and in “maintaining the parks in the heart of our Capital in an attractive and intact condition.”

In the current case, the court uses the phrase “spread the burden around” several times to refer to the intent behind the passage of the ordinance, finally settling on two sentences listing three interests which the Court finds substantial:

  1. "…the substantial interest of the City in managing its parks and “be[ing] fair to individual neighborhoods” by spreading the burden of the large group feedings.” (p. 10)
  2. “…the City has a substantial interest in managing park property and spreading the burden of large group feedings throughout a greater area and those interests are plainly served by the ordinance.” (p. 12)

While the court might fairly assert that the City has an interest in treating citizens/neighborhoods fairly and managing city property, the court goes shockingly outside of precedent in declaring “spreading the burden of large group feedings” as a stand-alone state interest.  Assuming, arguendo, that the Court intended that “spreading the burden” as their means to achieve the legitimate interest of treating citizens fairly, as the first sentence suggests, the Court fails to create a causal connection between large group feedings and the state’s treatment of its citizens.

Fair Treatment

FNB chose the location of their meals.  The state may not compel a political organization to meet in a designated location, therefore the state is not responsible for creating any “burden” which may have resulted from the meals.   The City never alleges that the twice-weekly meals prevented the City from treating its citizens fairly.  Instead, it seems that the City favored the claims of one group of citizens over another group, each equally entitled to peaceful, nondestructive use of the public park.

The City acknowledges that the ordinance arose out of complaints of residents of the surrounding area who “complained to the City about the conduct of people who disbursed into the neighborhoods after the feeding events.”  (p. 4) Although the City certainly has an interest in maintaining peace and order on its streets, there is no allegation that either peace or order ever were at stake.  There is no allegation that the objectionable conduct of the recently-fed homeless people was illegal, and the City may not discriminate against an unpopular individual or group merely on the basis of their unpopularity.  Therefore, the government’s asserted interest in treating its citizens fairly seems unrelated to its infringement Food Not Bombs' expression.

Maintaining Parks

The Court thus relies on the government interest of “maintaining its parks” as the substantial government interest which justifies restricting the protected, fundamental right of political expression guaranteed to Food Not Bombs by the First Amendment.  The court states that it “need look no further" than Clark to establish this substantial interest in managing public property.  (p. 8) On this point, the cases are radically distinguishable.  In Clark, the protestors were permitted to erect several tents and then sleep in the tents on the National Mall in a demonstration of solidarity with, and to draw attention to, the situation of homeless people in the United States.  Food Not Bombs supporters did not sleep in the park.  The court never alleges they stayed in the park longer than any other group that chose to share a meal in a public location.

In Clark, the government’s proposed regulations of a tent city on the National Mall were directly linked to their interests in “maintaining” and “conserving” the forum.  The Supreme Court found the interest “plainly served by . . .measures such as the proscription of sleeping that are designed to limit the wear and tear on park properties.”  Clark, p. 296, 299.  The government’s interest in maintaining and conserving the lawn was clearly not connected with suppression of speech.

In the present case, the Court cites no evidence supporting the contention that the free meals were preventing the city from management of the parks.  Orlando’s interest “managing” a public forum is far different than the substantial government interest of “maintaining” or “conserving” it.  In addition to an assertion that the City lacks a substantial state interest, Food Not Bombs might even argue that “managing” is related to suppression of speech, failing the final element of O’Brien per se.  However, the group need not even go that far; without an important or substantial state interest, the government may not justify infringement of a citizen’s right to political speech.

Other Arguments

Finally, FNB may have several additional arguments in support of their Free Speech claim which are more fact-intensive than the limited summary given in the Court opinion permits me to infer.  For example, the Court found the restriction on speech in O’Brien to be incidental.  FNB may be able to discuss circumstances that would make the City’s two-mile radius more than an “incidental” restriction, especially because many of the participants likely lack available transportation. Similarly, the group might argue that the Clark element of “ample alternative channels for communication” are not available.

I certainly hope that Food Not Bombs appeals, and that the current Supreme Court still recognizes the right of a politically unpopular group to peaceful, nondestructive use of a public park, a traditional public forum.  Housed Americans have no more right to the streets than those who sleep there.

Americans who are fortunate enough to have a safe bed and regular meals might be uncomfortable regularly facing those without such privilege who are living in their midst.  The Constitution does not protect us from being uncomfortable in the face of opposing political views.  Neither should the City of Orlando.