Orlando City officials received good tidings on April 12, 2011, as 11th Circuit, sitting en banc, ruled in the City’s favor in First Vagabonds Church of God v. City of Orlando, No. 08-16788. The Court unanimously upheld an Orlando ordinance enacted to keep activists for the homeless from serving meals twice a week in Orlando’s most prominent park, Lake Eola Park.  The decision is available here (PDF).  

The Facts:

Essentially, a church catering to the homeless and a political group had set up shop twice a week in the park, serving meals that attracted dozens of homeless persons.  Nearby residents were *less than thrilled* about having these guests visit them so frequently.  

So Orlando enacted a city ordinance that requires anyone who wants to hold a “large group feeding” to obtain a permit, and limited applicants to holding a feeding twice per year in any one park.  Orlando has 42 parks within the vicinity of City Hall (in the Downtown Parks District) and another 66 elsewhere, so in theory the group could hold 84 of its 104 yearly “feedings” in the Downtown Parks, and the other 20 still within the City limits.  

Previous Decisions

The District Court enjoined enforcement of the ordinance as violative of First Amendment rights.  On appeal, Judge Edmonson, writing for a panel majority of himself and Judge Baldock of the 10th Circuit, sitting by designation, reversed.  The majority held that the conduct regulated by the Orlando ordinance, namely holding “large group feedings,” was not expressive in nature, so it was not protected by the 1st Amendment.

Dissents in the 11th Circuit are pretty rare as compared to other federal Circuits, but Judge Barkett vigorously dissented, disputing the majority’s characterization of the conduct being regulated.  In her view, the large group feedings the ordinance targeted had an unmistakable protest element to them, and the conduct was therefore entitled to 1st Amendment protection.

The En Banc Holding   

Here’s where it gets interesting.  Although Judge Barkett dissented from the panel decision, the en banc decision was unanimous (which is also pretty rare).  And the en banc Court reached the same result as the panel, finding that the ordinance is enforceable and Constitutional.

The difference was in the reasoning.  The en banc Court assumed without deciding that the conduct at issue was expressive in nature.  But it found that the ordinance itself passed Constitutional muster. 

The ordinance, the Court explained, does not ban any type of speech outright.  It is only a reasonable “time, place or manner” restriction” in that it restricts the amount of time any group can use any one park for a “feeding”. 

The ordinance is also viewpoint neutral, according to the Court.  Moreover, the Court noted, the homeless activist groups can obey the ordinance and still hold their feedings.  They will just need to rotate among the City’s parks.

Judge Barkett was apparently okay with that conclusion.  As was the rest of the unanimous Court.