                                                                [PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                  FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                    ________________________ ELEVENTH CIRCUIT
                                                         APR 12, 2011
                          No. 08-16788                    JOHN LEY
                                                            CLERK
                    ________________________

             D. C. Docket No. 06-01583-CV-ORL-31-KRS

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,

                             versus

CITY OF ORLANDO, FLORIDA,

                                      Defendant-Appellant-Cross Appellee,

NATIONAL LAW CENTER ON
HOMELESSNESS & POVERTY,

NATIONAL LEGAL FOUNDATION,

                                      Amicus.
                               ________________________

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

                                       (April 12, 2011)

Before DUBINA, Chief Judge, TJOFLAT, EDMONDSON, CARNES,
BARKETT, HULL, WILSON, PRYOR, MARTIN and BLACK, Circuit Judges.*

PRYOR, Circuit Judge:

       This appeal presents the question whether a municipal ordinance that limits

the number of feedings of large groups that any person or political organization can

sponsor in centrally located parks violates the First Amendment. A political

organization, Orlando Food Not Bombs, contends that an ordinance that, as

applied, restricts the frequency of its feedings of homeless persons in any park

within a two-mile radius of the City Hall of Orlando, Florida, violates the Free

Speech Clause of the First Amendment. The City of Orlando enacted the

ordinance to spread the burden that feedings of large groups have on parks and

their surrounding neighborhoods. Orlando Food Not Bombs argues that it has a

right under the First Amendment to conduct feedings of large groups in any park as

often as it likes. We assume, without deciding, that the feeding of homeless


       *
         Judge Stanley Marcus recused himself and did not participate in this decision. Judge
Susan Black continued to participate in this decision after she assumed senior status. 28 U.S.C.
§ 46(c).

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persons by Orlando Food Not Bombs is expressive conduct protected by the First

Amendment, but we uphold the ordinance of the City of Orlando both as a

reasonable time, place, or manner restriction of speech and as a reasonable

regulation of expressive conduct. The judgment of the district court is affirmed in

part and reversed in part, and the permanent injunction against enforcement of the

ordinance is vacated.

                                 I. BACKGROUND

      Lake Eola Park, located in the heart of downtown Orlando, Florida, is the

signature park of the City and is featured on the seal of the City. Lake Eola Park is

also one of 42 parks located in the Greater Downtown Park District, which is the

area within a two-mile radius of City Hall. Orlando, Fla., Code § 18A.01(24).

Orlando has a total of 108 parks in the entire City.

      In 2005, Orlando Food Not Bombs, a group of political activists dedicated to

the idea that food is a fundamental human right, began distributing free food at

Lake Eola Park every Wednesday at 5:00 p.m., and First Vagabonds Church of

God, a religious organization of about 40 members, most of whom are homeless,

began conducting weekly services that included group feedings at Lake Eola Park.

The Church later moved its services to Langford Park, which is also in the Greater

Downtown Park District. In 2008, Orlando Food Not Bombs added a second



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weekly feeding at Lake Eola Park on Mondays at 8:00 a.m. The free feedings

ordinarily attracted between 50 and 120 people. After Orlando Food Not Bombs

began distributing food at Lake Eola Park, residents of the surrounding

neighborhoods complained to the City about the conduct of people who disbursed

into the neighborhoods after the feeding events.

       In response to the complaints, the City held public hearings and enacted an

ordinance to regulate feedings of large groups at central public parks. The

ordinance required sponsors of feedings of large groups within the Greater

Downtown Park District to obtain a permit, and the ordinance limited the number

of permits that a permitee could obtain for any one park to two a year. Id. §

18A.09–2. The ordinance defined a “large group feeding” as “an event intended to

attract, attracting, or likely to attract twenty-five (25) or more people[] . . . for the

delivery or service of food.” Id. § 18A.01(23).

       The Mayor of Orlando, John Hugh Dyer Jr., testified that the ordinance was

enacted as an attempt to “be fair to individual neighborhoods” by distributing the

large group feedings among the various city parks. A city official testified that the

ordinance “was primarily intended to help broaden the burden across downtown,”

and a city record established that the ordinance was enacted to make the burdens

placed on public parks “more manageable with advance notice and regulation



                                             4
through a permit system.” Lisa Early, the Director of Families, Parks, and

Recreation for the City, testified about the overuse of Lake Eola Park and

explained that there were other parks with large green spaces that had the capacity

to be used more often. Early also testified that the ordinance achieved the

objective of lessening the burden placed on Lake Eola Park because it limited the

number of large group feedings that any one group could sponsor and “[told] them,

‘We need to make use of all of our parks and facilities and spread the burden

around.’”

      Orlando Food Not Bombs and four of its members, Ryan Hutchinson,

Benjamin Markeson, Eric Montanez, and Adam Ulrich, and the Church and its

pastor, Brian Nichols, together filed in the district court a complaint against the

City of Orlando that sought injunctive and declaratory relief and damages. The

Church alleged that the ordinance, as applied, violated the Florida Religious

Freedom Restoration Act, Fla. Stat. § 761.01 et seq.; and that the ordinance, both

facially and as applied, violated the Free Exercise Clause of the First Amendment.

The Church and Orlando Food Not Bombs both alleged that the ordinance, facially

and as applied, violated the Free Assembly Clause of the First Amendment and the

Due Process and Equal Protection Clauses of the Fourteenth Amendment. Orlando

Food Not Bombs also alleged that the ordinance, facially and as applied, violated



                                           5
the Free Speech Clause of the First Amendment.

      The district court granted summary judgment in favor of the City on the

claims under the Due Process and Equal Protection Clauses, and the district court

granted summary judgment against the facial challenge under the Free Speech

Clause as without merit because the conduct regulated by the ordinance was not,

on its face, expressive activity. After a two-day bench trial on the remaining

issues, the district court granted a motion by the City for judgment on partial

findings, Fed. R. Civ. P. 52(c), on the claims of the Church under the Florida

Religious Freedom Restoration Act. The district court then entered judgment on

the remaining claims in a written order. First Vagabonds Church of God v. City of

Orlando, 578 F. Supp. 2d 1353 (M.D. Fla. 2008).

      The district court ruled in favor of the Church on its claim under the Free

Exercise Clause, in favor of Orlando Food Not Bombs on its as-applied claim

under the Free Speech Clause, and in favor of the City on the claim under the Free

Assembly Clause. Id. at 1362. The district court permanently enjoined the City

from enforcing the ordinance. Id. The City, Orlando Food Not Bombs, and the

Church appealed the respective rulings of the district court that were not in their

favor with the exception of the Free Assembly claim, which was abandoned on

appeal.



                                           6
      A panel of this Court affirmed in part, reversed in part, and vacated the

injunction. First Vagabonds Church of God v. City of Orlando, 610 F.3d 1274

(11th Cir. 2010). The panel reversed judgment in favor of Orlando Food Not

Bombs and the Church on the claims under the Free Speech and Free Exercise

Clauses, and the panel affirmed the judgment in favor of the City on the claims

under the Florida Religious Freedom Restoration Act and the Equal Protection and

Due Process Clauses. Id. at 1285–92.

      On August 31, 2010, we granted the petition for rehearing en banc filed by

Orlando Food Not Bombs and vacated the panel opinion. First Vagabonds Church

of God v. City of Orlando, 616 F.3d 1229 (11th Cir. 2010). We directed Orlando

Food Not Bombs and the City to brief one issue: whether the ordinance as applied

to Orlando Food Not Bombs violated the Free Speech Clause of the First

Amendment. We later heard oral argument on that issue.

                          II. STANDARD OF REVIEW

      We review questions of law de novo. Gold Coast Publ’ns, Inc. v. Corrigan,

42 F.3d 1336, 1343 (11th Cir. 1994). “[W]e review the core constitutional facts de

novo, unlike historical facts, which are measured only for clear error.” Bloedorn v.

Grube, 631 F.3d 1218, 1229 (11th Cir. 2011).

                                III. DISCUSSION



                                          7
      The resolution of this appeal does not require us to determine whether the

feeding of homeless persons by Orlando Food Not Bombs in public parks is

expressive conduct entitled to protection under the First Amendment. We will

assume, without deciding, that this conduct is expressive and entitled to some

protection under the First Amendment. See Clark v. Cmty. for Creative Non-

Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3068–69 (1984). But even when we

assume that the feeding of homeless persons by Orlando Food Not Bombs is

expressive conduct, we cannot conclude that the ordinance that regulates that

conduct violates the Free Speech Clause of the First Amendment.

      We need look no further than the decision of the Supreme Court in Clark to

resolve this appeal. 468 U.S. 288, 104 S. Ct. 3065. In Clark, the Community for

Creative Non-Violence had obtained a permit from the National Park Service to

conduct a demonstration in Lafayette Park and the National Mall in Washington,

D.C. Id. at 291, 104 S. Ct. at 3068. The Community planned to erect several tents

as a symbolic statement about the plight of the homeless in the District of

Columbia. Id. The National Park Service allowed the erection of the symbolic

tents, but denied a request by the Community to allow participants in the

demonstration to sleep in the tents. Id. at 292, 104 S. Ct. at 3068. The Park

Service relied on a regulation that permitted camping only in campgrounds



                                          8
designated for that purpose. Id. at 291–92, 104 S. Ct. at 3068. The Community

complained that the regulation, as applied to the participants in the demonstration,

violated the Free Speech Clause. Id. The Supreme Court assumed, without

deciding, that sleeping in connection with the demonstration was expressive

conduct protected to some extent by the First Amendment, but nonetheless upheld

the regulation as applied to the Community by the Park Service. Id. at 293–94,

104 S. Ct. 3069.

      The Supreme Court held that the prohibition of overnight sleeping in public

parks, as a symbolic statement about the plight of the homeless, withstood

constitutional scrutiny “either as a time, place, or manner restriction or as a

regulation of symbolic conduct.” Id. at 294, 104 S. Ct. at 3069. The regulation

was valid as a reasonable time, place, or manner restriction because “the ban on

sleeping[] [was] clearly [a] limitation[] on the manner in which the demonstration

could be carried out.” Id. That the Court assumed that sleeping was a form of

expression did not change the analysis because “the Park Service neither attempts

to ban sleeping generally nor to ban it everywhere in the parks.” Id. at 295, 104 S.

Ct. at 3070. The challenged regulation was a reasonable time, place, or manner

restriction because it was content neutral, left open alternative channels of speech,

id., and was narrowly focused on the substantial interest of the government in



                                           9
“maintaining the parks in the heart of our Capital in an attractive and intact

condition, readily available to the millions of people who wish to see and enjoy

them by their presence,” id. at 296, 104 S. Ct. at 3070. The Supreme Court also

explained that the regulation that prohibited overnight sleeping satisfied the four-

part test of United States v. O’Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679

(1968). Clark, 468 U.S. at 298–99, 104 S. Ct. at 3071–72. There was no

contention that a prohibition on overnight sleeping in public parks was beyond the

constitutional power of the government to enforce, id.; the government had a

substantial interest in conserving park property that was “plainly served by . . .

measures such as the proscription of sleeping that are designed to limit the wear

and tear on park properties,” id. at 299, 104 S. Ct. at 3072; that interest was

unrelated to the suppression of expression, id.; and the incidental restrictions of the

alleged freedoms under the First Amendment were no greater than necessary to

further the interest of the government, id.

      The Supreme Court rejected the reasoning of the Court of Appeals for the

District of Columbia Circuit that the incidental restriction of the freedoms of the

demonstrators under the First Amendment was greater than necessary because

there were “less speech-restrictive alternatives that could have satisfied the

Government interest in preserving park lands.” Id. The Supreme Court described



                                           10
the suggestion by the circuit court of alternative means of preserving the park lands

as “represent[ing] no more than a disagreement with the Park Service over how

much protection the core parks require or how an acceptable level of preservation

is to be attained.” Id. The Supreme Court explained that its decisions about the

First Amendment do not “assign to the judiciary the authority to replace the Park

Service as the manager of the Nation’s parks or endow the judiciary with the

competence to judge how much protection of park lands is wise and how that level

of conservation is to be attained.” Id.

      Even when we assume that the feeding of homeless persons is expressive

conduct, the ordinance, as applied to Orlando Food Not Bombs, is a reasonable

time, place, or manner restriction. The ordinance restricts feedings even less than

the regulation in Clark restricted sleeping. Orlando Food Not Bombs can obtain

two permits a year for each of the 42 parks in the Greater Downtown Parks

District, which allows for a total of 84 group feedings a year at parks within a two-

mile radius of the City Hall. The ordinance places no restrictions on the number of

large group feedings Orlando Food Not Bombs can sponsor at any of the other 66

parks located outside the Greater Downtown Parks District. The City “neither

attempts to ban [large group feedings] generally nor to ban [them] everywhere in

the parks.” Id. at 295, 104 S. Ct. at 3070. Orlando Food Not Bombs does not



                                          11
contend that the ordinance is content based. The ordinance leaves open ample

channels of communication; Orlando Food Not Bombs is not prevented by the

ordinance from conducting as many political rallies, demonstrations, distributions

of literature, or any other expressive activities as it likes at Lake Eola Park. The

ordinance also narrowly furthers 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.

      The ordinance is a valid regulation of expressive conduct that satisfies all

four requirements of O’Brien, 391 U.S. at 377, 88 S. Ct. at 1679. First, Orlando

Food Not Bombs does not contest that it is within the power of the City to enact

ordinances that regulate park usage. Second, 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.

Third, the interest of the City in managing parks and spreading large group

feedings to a larger number of parks is unrelated to the suppression of speech.

Fourth, the incidental restriction of alleged freedoms under the First Amendment is

not greater than necessary to further the interest of the City. We cannot “replace

the [City] as the manager of [its] parks,” nor decide “how much protection of park

lands is wise and how that level of conservation is to be attained.” Clark, 468 U.S.



                                           12
at 299, 104 S. Ct. at 3072. The City is in a far better position than this Court to

determine how best to manage the burden that large group feedings place on

neighborhoods in the City.

       After the district court directed the parties to file post-trial briefs in lieu of

making closing arguments, the City argued at length that “Clark is particularly

relevant . . . because of its facts,” but the district court failed inexplicably to

discuss the Clark decision in its final order. The district court acknowledged that

the primary reason the City adopted the ordinance was “an effort to spread the

impact of large group feedings among Orlando’s parks.” First Vagabonds Church

of God, 578 F. Supp. 2d at 1360. The district court reasoned that, although “the

City clearly has the right to regulate the use of its parks, this Ordinance does not do

so” in a permissible manner because “whatever problems may exist, this Ordinance

does nothing but move them around to be shared by other parks.” Id. at 1361. The

district court failed to explain why sharing the burden of large group feedings

among a larger group of parks and neighborhoods is not a substantial governmental

interest. The district court instead erroneously concluded, without analysis, that

“[e]ven assuming that the Ordinance did further a substantial governmental

interest, the restrictions placed on First Amendment freedoms are much greater

than [those] which are essential.” Id. The district court would have benefitted



                                             13
from closer consideration of Clark, where the Supreme Court rejected the

contention that, because there were “less speech-restrictive alternatives that could

have satisfied the Government interest in preserving park lands,” the restrictions

placed on freedoms under the First Amendment were too great. Clark, 468 U.S. at

299, 104 S. Ct. at 3072.

      The Supreme Court has made clear that “an incidental burden on speech is

no greater than is essential, and therefore is permissible under O’Brien, so long as

the neutral regulation promotes a substantial government interest that would be

achieved less effectively absent the regulation.” United States v. Albertini, 472

U.S. 675, 689, 105 S. Ct. 2897, 2906 (1985). We have no doubt that the

substantial interest of the City in spreading the burden of large group feedings

among a larger number of parks would be achieved less effectively absent the

ordinance. The Supreme Court has instructed us that “the validity of such

regulations [of expressive conduct] does not turn on a judge’s agreement with the

responsible decisionmaker concerning the most appropriate method for promoting

significant government interests.” Id. at 689, 105 S. Ct. at 2907.

                                IV. CONCLUSION

      The ordinance as applied to the feedings of homeless persons by Orlando

Food Not Bombs does not violate the Free Speech Clause of the First Amendment.



                                          14
This Court did not reconsider en banc sections II.B-E of our panel opinion in this

appeal, and the result reached in those sections of the panel opinion is

REINSTATED. See First Vagabonds Church of God, 610 F.3d at 1285–92. The

decision of the district court is AFFIRMED in part and REVERSED in part, and

the permanent injunction is VACATED.




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