11 F.4th 1266
11th Cir.2021Background
- Fort Lauderdale Food Not Bombs (FLFNB), an unincorporated advocacy group, held weekly food-sharing events in Stranahan Park to communicate a political message about redirecting resources from military spending to feeding the hungry.
- Park Rule 2.2 bans "social service" uses in parks (including free food distribution) unless authorized by a written City agreement; the City later adopted (and then repealed) an Ordinance that imposed a conditional-use permit process for outdoor food distribution.
- City police interrupted and cited participants at several November 2014 FLFNB events; the City later ceased enforcement after state-court proceedings, and repealed the Ordinance in 2017, but Park Rule 2.2 remains in force.
- Plaintiffs sued under 42 U.S.C. § 1983 seeking declaratory, injunctive, and damages relief, alleging First Amendment (expression and association), vagueness, and prior-restraint claims; the district court granted summary judgment for the City but this Court previously held FLFNB’s conduct was expressive.
- On remand the Eleventh Circuit addressed (1) threshold issues (FLFNB’s § 1983 standing, mootness of Ordinance claims, plaintiffs’ standing) and (2) whether Park Rule 2.2 survives First Amendment scrutiny as applied to FLFNB.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unincorporated association (FLFNB) is a "person" under § 1983 | FLFNB: § 1983’s text and subsequent authority (including Allee and Rule 17(b)) permit unincorporated associations to sue | City: "person" originally excluded unincorporated associations; § 1983 should not cover FLFNB | Held: FLFNB is a "person" under § 1983 (Allee and later practice support inclusion) |
| Mootness of claims against repealed Ordinance | FLFNB: damages claims remain viable; injunctive/declaratory relief sought | City: repeal moots declaratory/injunctive challenges to the Ordinance | Held: Declaratory and injunctive claims against the Ordinance are moot; damages claims for past enforcement survive |
| Article III standing for Individual Plaintiffs and FLFNB | Plaintiffs: arrests, citations, and credible threat of enforcement give concrete injury; FLFNB also suffered diversion of resources | City: plaintiffs were not directly prosecuted; no concrete injury | Held: Individual plaintiffs and FLFNB have standing for damages and Park Rule injunctive/declaratory relief |
| As-applied First Amendment challenge to Park Rule 2.2 (content neutrality; prior restraint; time/place/manner) | FLFNB: Rule vests standardless discretion in City officials and therefore is an unconstitutional prior restraint and not narrowly tailored | City: rule is content neutral, serves substantial park-management interests, and is a valid time/place/manner regulation | Held: Park Rule is content neutral but, as applied, unconstitutional because it delegates unguided, arbitrary discretion (prior restraint risk) and is not narrowly tailored as a time/place/manner restriction |
Key Cases Cited
- Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235 (11th Cir. 2018) (prior panel holding FLFNB’s food-sharing is expressive conduct)
- Spence v. Washington, 418 U.S. 405 (1974) (two-part test for expressive conduct)
- United States v. O'Brien, 391 U.S. 367 (1968) (intermediate scrutiny test for content-neutral regulation of expressive conduct)
- Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) (time, place, manner and narrow-tailoring standard)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (distinction between content-based and content-neutral regulations)
- Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) (invalidating permit regimes that vest unbridled discretion — prior restraint concerns)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (unconstitutional licensing schemes and fees tied to anticipated audience reaction)
- McCullen v. Coakley, 573 U.S. 464 (2014) (narrow tailoring and consideration of less-restrictive alternatives)
- Allee v. Medrano, 416 U.S. 802 (1974) (unincorporated union may sue under § 1983)
- Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) (broad construction of § 1983 remedies)