11/27/2013 04:57 pm ET Updated Jan 27, 2014

Should Sharing Food Be Classified as a First Amendment Right?

On Thanksgiving Day, many religious and secular organizations share food with the needy. Typically these one day events proceed without significant legal restrictions. However, in recent years many cities have enacted ordinances severely restricting or prohibiting the feeding on an ongoing basis of the needy in public parks and other similar venues. The stated reason for these restrictions typically involves public health and safety concerns. In contrast, over some years, numerous statutes limit the potential tainted food liability of food donors (such as supermarkets) to food banks. Assertions that feeding the needy involve protected First Amendment speech or religious expression are frequently not successful in a judicial setting. Should the First Amendment limit the reach of "anti-feeding" ordinances?

The Federal Court of Appeals for the Eleventh Circuit in 2010 discussed some First Amendment issues in First Vagabonds Church of God v. City of Orlando, Florida. The plaintiff organizations asserted that an Orlando ordinance that required permits to feed people violated the Florida Religious Freedom Restoration Act, the First Amendment, and the Fourteenth Amendment. A federal District Court decision that the ordinance violated First Amendment speech and religious protections was reversed. In summary, the Eleventh Circuit determined that the conduct in question was not expressive speech and that the ordinance was neutral and of general applicability so that any religious burden was only incidental. A dissenting judge indicated that the majority too narrowly viewed the expressive conduct as being only the food distribution. Furthermore, the dissent noted that sharing food has significant historical and religious meaning, something not discussed in the majority opinion.

Most governmental regulations are reviewed under a "rational basis" standard. Public health and safety concerns provide an adequate reason for many ordinances to be upheld. Regulations that restrict fundamental rights are subjected to "strict scrutiny." Strict scrutiny requires that the regulation in question be narrowly tailored to address a compelling governmental interest and be the least restrictive means of achieving that goal. If sharing food were classified as a fundamental right under the First Amendment, an "anti-feeding" ordinance would be more difficult to justify.

Feeding the needy is only part of the larger issue of poverty. Many organizations and individuals sincerely want to address poverty by providing food and other services. The question becomes how our society wants to classify food distribution activities? How supportive or restrictive should our legal system be concerning food distribution? Should innovative ways of providing food to the needy be encouraged or discouraged? What should be the relative status of large non-profit organizations and smaller groups and individuals lacking the resources to have formal locations and institutional kitchens, requirements frequently imposed by ordinance? What activity is appropriate in public parks? How should public convenience, business and tourism concerns be balanced with feeding activities that arguably attract the needy to certain locations in the community?

The questions and policy issues are numerous. However, as a foundational matter, should sharing food be classified as a First Amendment right?