616 F.3d 1229
11th Cir.2011Background
- Orlando enacted an ordinance restricting large-group feedings in the Greater Downtown Park District, requiring permits and capping permits per park at two per year.
- Orlando Food Not Bombs and First Vagabonds Church distributed food and fed homeless persons at Lake Eola Park and Langford Park, respectively, both within the district.
- Residents complained, leading to public hearings and the ordinance aimed at spreading the burden across multiple parks and neighborhoods.
- The district court ruled on multiple constitutional challenges, including Free Speech, Free Exercise, and Florida RFRA claims, and entered judgment in part for the City and in part for plaintiffs.
- A panel of the Eleventh Circuit partially affirmed, reversed, and vacated the injunction, then en banc rehearing was granted and the court limited issues to Free Speech as applied to Orlando Food Not Bombs.
- The Eleventh Circuit, applying Clark v. Community for Creative Non-Violence, held the ordinance is a valid time, place, or manner restriction and not a violation of the Free Speech Clause as applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ordinance as applied to OFNB violates the Free Speech Clause | OFNB contends the ordinance bans expressive activity more than necessary. | City argues the ordinance is a reasonable time/place/manner restriction to spread burden on parks. | No; ordinance upheld as valid time/place/manner restriction. |
| Whether the ordinance is content-neutral and leaves open alternative channels | OFNB asserts no free-speech channels are effectively hindered. | City maintains it regulates conduct without suppressing message and permits alternative venues. | Yes; regulation is content-neutral and preserves alternative channels. |
| Whether Clark v. Community for Creative Non-Violence controls the analysis | OFNB argues Clark requires less restrictive measures to satisfy interests. | City cites Clark to justify incidental restrictions as permissible. | Clark controls; incidental restriction is permissible if narrowly tailored to government interests. |
Key Cases Cited
- Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (U.S. 1984) (assumed expressive conduct but upheld as time/place/manner restriction)
- United States v. Albertini, 472 U.S. 675 (U.S. 1985) (incidental burden on speech permissible if substantially related to government interests)
- First Vagabonds Church of God v. City of Orlando, 610 F.3d 1274 (11th Cir. 2010) (partial reversal on panel; en banc reconsideration later)
- First Vagabonds Church of God v. City of Orlando, 616 F.3d 1229 (11th Cir. 2010) (en banc decision directing focus on Free Speech as applied)
- First Vagabonds Church of God v. City of Orlando, 578 F. Supp. 2d 1353 (M.D. Fla. 2008) (district court decision on RFRA and other claims)