First Vagabonds Church Of God v. City Of Orlando

610 F.3d 1274

FIRST VAGABONDS CHURCH OF GOD, an unincorporated association, Brian Nichols, Orlando Food Not Bombs, an unincorporated association, Ryan Scott Hutchinson, Benjamin B. Markeson, Eric Montanez, Adam Ulrich, Plaintiffs-Appellees-Cross Appellants,v. CITY OF ORLANDO, FLORIDA, Defendant-Appellant-Cross Appellee,National Law Center on Homelessness & Poverty, Amicus.

No. 08-16788.

United States Court of Appeals Eleventh Circuit.

July 6, 2010.

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Kathleen Maloney Skambis, Christopher C. Skambis, Skambis Law Firm, Martha Lee Lombardy, Office of Legal Affairs, Mayanne Downs, King, Blackell & Downs & Zehnder, P.A., Orlando, FL, for Defendant-Appellant-Cross Appellee.

Glenn Michael Katon, ACLU Foundation of Florida, Inc., Tampa, FL, Jacqueline Hilary Dowd, Legal Advocacy at Work, Inc., Orlando, FL, Randall C. Marshall, Amer. Civ. Liberties Union of Fla., Inc., Miami, FL, for Plaintiffs-Appellees-Cross Appellants.

Eric J. Hager, Conrad & Scherer, LLP, Washington, DC, Steven Werner Fitschen, Nat. Legal Foundation, Virginia Beach, VA, for Amicus.

Appeals from the United States District Court for the Middle District of Florida.

Before EDMONDSON, BARKETT and BALDOCK,^* Circuit Judges.

EDMONDSON, Circuit Judge:

This case is about a local government regulating the manner in which some of its parks are used. We decide whether the City of Orlando's Large Group Feeding Ordinance, as applied to First Vagabonds Church of God and Orlando Food Not Bombs, violates the First and Fourteenth Amendments to the United States Constitution. We also decide whether the ordinance, as applied to First Vagabonds Church of God, violates the Florida Religious Freedom Restoration Act. We conclude that, in the circumstances of this case, the ordinance does not offend the United States Constitution or violate the Florida Religious Freedom Restoration Act. We affirm the district court's judgment in part and reverse it in part. We vacate the district court's permanent injunction that barred enforcement of the ordinance.

I. BACKGROUND

Plaintiff First Vagabonds Church of God is a Christian church; Plaintiff Brian Nichols is the church's pastor.¹ The Church's congregation consists of approximately forty members, most of whom are homeless. Because the Church has no building, Pastor Nichols holds services every Sunday at Langford Park in Orlando. The Church serves food to its members as a part of its religious services.

Plaintiff Orlando Food Not Bombs is a loosely structured organization of political activists who share the view that society has a responsibility to provide food to all of its members; Plaintiffs Ryan Hutchinson, Eric Montanez, Benjamin Markeson, and Adam Ulrich are members of the organization.² OFNB conducts food-sharing events at Lake Eola Park, Orlando's signature park, where OFNB provides free food to hungry and homeless persons.

Defendant is the City of Orlando (“the City”). After getting complaints about large numbers of homeless people disbursing from Lake Eola Park into neighborhoods after feeding events, the City enacted the Large Group Feeding Ordinance (the “Ordinance”).³ The Ordinance requires anyone conducting a “large group feeding” within the Greater Downtown Park District (“GDPD” or “the District”) to obtain a permit first.⁴ The District is the area within a two-mile radius around Orlando's City Hall and encompasses fewer than half of the City's parks. A “large group feeding” is defined as an “event intended to attract, attracting, or likely to attract 25 or more people, including distributors and servers, in a park or park facility owned or controlled by the City, including adjacent sidewalks and rights-of-way in the GDPD, for the delivery or service of food.”⁵

The Ordinance limits the number of permits a person, group, or organization can obtain for a single park within the District to two per consecutive 12-month period. Because both Lake Eola Park and Langford Park are located in the District, the Ordinance affected the activities of both OFNB and the Church. To comply with the Ordinance and continue to serve food in Orlando's parks regularly, both groups will need to rotate their events among the parks in the District or move to a park outside of the District.

In federal court, the Plaintiffs brought six claims against the City. The Church alleged that the Ordinance, as applied to them, violates the Florida Religious Freedom Restoration Act (“FRFRA”), Fla. Stat. § 761.01 et seq. , and that the Ordinance, facially and as applied to them, violates the First Amendment's Free Exercise Clause. OFNB alleged that the Ordinance, both facially and as applied to them, violates the First Amendment's Free Speech Clause.⁶ Both Plaintiffs alleged that the Ordinance, facially and as applied to them, violates their rights under the First Amendment's Free Assembly Clause and the Fourteenth Amendment's Due Process and Equal Protection Clauses.⁷

The district court granted the City summary judgment on both the due process and equal protection claims. In its summary judgment order, the district court also rejected OFNB's facial free speech claim because “the conduct regulated by the ordinance is not, on its face, an expressive activity.”⁸ The district court, without a jury, then held a two-day trial on the remaining issues. At the close of the Plaintiffs' case, the City made a motion for a judgment on partial findings pursuant to Fed.R.Civ.P. 52(c); the district court declined then to render judgment on that motion.

Shortly after trial, the district court granted the City's Rule 52(c) motion for judgment on the FRFRA claim. Later, the district court entered an opinion and order ruling in favor of the Church on its free exercise claim, in favor of OFNB on its as-applied free speech claim, and in favor of the City on the Plaintiffs' free assembly claims.⁹ The district court permanently enjoined the City from enforcing the Ordinance against Plaintiffs. The City appeals the district court's conclusions, after trial, on the free speech and free exercise claims, and the resulting permanent injunction prohibiting the enforcement of the Ordinance against Plaintiffs. Both the Plaintiffs appeal the district court's grant of summary judgment to the City on their due process (void-for-vagueness) claims. The Church appeals the district court's grant of summary judgment in favor of the City on its equal protection claim, as well as the district court's conclusion, under Rule 52(c), that the Ordinance does not violate the FRFRA.

II. DISCUSSION

A. Free Speech Clause

The City appeals the district court's conclusion that the Ordinance violates the Free Speech Clause, as applied to OFNB; the district court thought that the Ordinance regulates expressive conduct but does not further a substantial government interest. In the circumstances of this case, the feeding Ordinance regulates no protected expressive conduct; we cannot agree with the district court's decision.

We review the district court's determinations of historical fact for clear error, but review de novo its conclusions of law and determinations of “constitutional fact.” See Flanigan's Enterprises, Inc. of Georgia v. Fulton County, Ga., 596 F.3d 1265, 1275-76 (11th Cir.2010). OFNB claims that the Ordinance is unconstitutional because it requires a permit to engage in large group feedings-conduct which OFNB claims is sufficiently expressive to count as speech under the First Amendment-and limits the maximum number of permits that a person or organization can obtain to two per year per park. OFNB wishes to conduct feedings in a single park located in the District more often than the Ordinance will allow.

Conduct that is expressive comes within the First Amendment's protection. See Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 2538, 105 L.Ed.2d 342 (1989). All conduct is not expressive. Nor is conduct presumptively expressive; the party invoking the First Amendment's protection has the burden to prove that it applies. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 3069 n. 5, 82 L.Ed.2d 221 (1984). To determine “whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play,” we have traditionally asked two things: (1) whether the person seeking the First Amendment's protection had an “intent to convey a particularized message”; and (2) whether “the likelihood was great that the message would be understood by those who viewed it.” Johnson, 109 S.Ct. at 2539 (internal quotation marks omitted). A “narrow, succinctly articulable message is not a condition of constitutional protection.” Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 2345, 132 L.Ed.2d 487 (1995). Instead, “in determining whether conduct is expressive, we ask whether the reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir.2004). This inquiry is an objective one. See id.

Just because the First Amendment does not require expression delivered via conduct to meet a level of specificity or clarity does not mean “that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” See United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). The First Amendment only protects “inherently expressive” conduct; when conduct is “inherently expressive,” it will be “overwhelmingly apparent” to a reasonable observer that he is viewing a form of symbolic speech. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (“ FAIR”), 547 U.S. 47, 126 S.Ct. 1297, 1310-11, 164 L.Ed.2d 156 (2006). When the objective reasonable observer is deciding whether he is...