Jay Diaz is an attorney and litigator at Darby Kolter & Roberts in Waterbury. He can be reached directly via Linkedin.
What do Tupac Shakur and the Burlington-based group Food Not Bombs/Food Not Cops have in common? Well, both admonish political leaders because “They got money for war, but can’t feed the poor.” They both also have a First Amendment right to express this message. Tupac used profound rap lyrics. Food Not Bombs/Food Not Cops uses the public act of sharing food.
Yes, food sharing is free speech, at least in this case. Let me explain.
There’s a controversy brewing in Burlington about a daily one-hour food sharing operation run by Food Not Bombs/Food Not Cops. The group is part of a loosely affiliated worldwide movement that has, for decades, shared food in public spaces in order to highlight societal inequities.
Since the pandemic, Burlington’s Food Not Bombs/Food Not Cops group has shared a prepared lunch on the sidewalk outside the downtown marketplace garage. The group recently moved to City Hall Park. But some Burlington officials want to put an end to the group’s food sharing operation on public property.
This would likely violate the First Amendment. The group is not sharing food for profit or just for fun. It distributes food to protest the allocation of public funds to war and policing rather than meeting basic human needs. Their intention and explicit message can be seen on their Instagram and Facebook pages.
They also spread it through public demonstrations, and by distributing physical materials while sharing food, publishing op-eds and public letters, and other forms of community engagement. Food sharing is the linchpin of the group’s expression.
In other words, the group’s food sharing is “expressive conduct,” and that’s protected by the First Amendment.
Our nation’s free speech jurisprudence has a long history of protecting expressive conduct, even when it is controversial or disruptive. The seminal case, Texas v. Johnson, protected a protester’s burning of the American flag. The Court noted the First Amendment’s “protection does not end at the spoken or written word.”
The protection, in fact, extended to high school students wearing black armbands to protest the Vietnam War and civil rights era sit-ins at “whites only” lunch counters. Courts have since expanded this protection to everything from tattoo parlors to topless dancing.
Food sharing has been deemed expressive conduct too. In 2018, a federal appeals court said Fort Lauderdale’s Food Not Bombs group’s food sharing was expressive conduct because it was “intended to convey a message” and “the surrounding circumstances would lead the reasonable observer to view the conduct as conveying some sort of message.”
Those “surrounding circumstances” included that the food sharing was open to all in a public park, performed near government buildings, and on tables with literature and signs. Also, homelessness was an issue of public concern in the city, the group explicitly used its sharing of food as a means to convey its message, and Food Not Bombs has a well-known message that is easily understood through its activities.
Burlington’s Food Not Bombs/Food Not Cops group conveys a nearly identical message through the same activity, is well known, comments on a public issue and clarifies its messages through public and online venues. A reasonable observer can understand the message of the group’s food sharing operation.
The group’s activities in City Hall Park, just outside the seat of Burlington’s government, enhances constitutional protections. Public parks are “traditional public fora” where free speech rights are at their zenith, unless subject to reasonable time, place and manner restrictions that do not regulate a message’s content. This means Burlington officials can’t go after this one group or its one type of expression; the city can only apply its neutral regulations — to the extent they exist — as it has previously done.
We should all want the First Amendment to apply here because doing so will help protect similar expressive conduct we may want to encourage. For instance, in a recent court case, the Brooklyn NAACP gave food to voters outside polling places while they waited to vote. But New York officials tried to stop them, claiming the “line-warming” could be used to influence voting decisions.
A federal judge decided line-warmers had a First Amendment right to engage in food distribution because the act conveyed the importance of voters staying in line to vote and emphasized that everyone’s vote counts — readily understandable political messages. For the First Amendment to protect this form of expressive conduct, it must apply to all who engage in that same or similar expressive conduct. We cannot protect only the type of expressive food distribution we like.
Burlington officials should carefully consider whether they want to go down this road (or sidewalk, as it were). Banning Food Not Bombs/Food Not Cops from public space risks more protest, more community members going hungry, and even a free speech lawsuit.
This can be avoided if city officials agree to share a sliver of public space for one hour each day for Food Not Bombs/Food Not Cops’s expressive act of community service. By allowing Food Not Bombs/Food Not Cops to continue its expressive conduct undisturbed, the city can convey its own message about the importance of upholding free expression — a sentiment all can share.
