TABLE OF CONTENTS Introduction 1005 I. Government Efforts to Criminalize the Homeless 1007 A. Poverty in the United States 1007 B. Criminalization of the Homeless 1009 C. Continuing the Trend of Criminalization Through the Use of Food Sharing Ordinances 1012 D. Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale 1013 II. Food Sharing and the Constitution 1015 A. Interpreting the First Amendment's Right to Expressive Conduct 1016 B. First Time for Everything: Applying the Fourteenth Amendment to the Homeless Population 1024 1. Due Process 1026 2. Equal Protection 1028 III. Protecting the Right to Share Food Is Necessary 1033 A. Finding Protection in the Constitution as a Whole 1034 B. The Pragmatic Basis for Protecting the Homeless 1036 C. International Agreements as a Justification for Domestic Action 1038 Conclusion 1039 INTRODUCTION
Everyone is smiling in Stranahan Park in Fort Lauderdale. Tables are lined up and filled with an abundance of food. Volunteers have come to communicate a message to both the local government and the general population about homelessness in the city, by distributing food to the hungry. But the smiles do not last long. Police begin to swarm the park and cite the volunteers for misdemeanors. (1) The volunteers violated a local city ordinance that limits "food sharing" (2) on city-owned property, because they did not satisfy a list of required conditions and therefore were not granted access to use the park for that purpose. (3) This situation led to the dispute in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale. (4)
Fort Lauderdale Food Not Bombs exemplifies how local government has taken unconstitutional action against the hungry by forbidding volunteers from sharing food with them. This restrictive practice has detrimental impacts on the hungry and is just another example of the government's attempt to criminalize (5) the portion of the population that is already stuck in poverty. This type of criminalization is constitutionally problematic under the First Amendment's freedom of expressive conduct and under the Fourteenth Amendment's Due Process and Equal Protection Clauses.
Part I of this Note provides contextual information about poverty in the United States, clarifies how food sharing ordinances fit into the larger context of actions taken to criminalize the homeless population, and explains the importance of Fort Lauderdale Food Not Bombs. Part II explores constitutional arguments that both were made and could have been made in Fort Lauderdale Food Not Bombs to protect the constitutional rights of the homeless. It focuses on the First and Fourteenth Amendments and explains which arguments, in light of the case's facts, would be the most persuasive on remand or in future litigation of this type. Part III urges courts (6) to consider the whole text of the U.S. Constitution, policy implications of these ordinances, and the United States' involvement in international agreements to ultimately protect the rights of both the food sharing organizations and the homeless population.
GOVERNMENT EFFORTS TO CRIMINALIZE THE HOMELESS
This Part explains how the situation in Fort Lauderdale Food Not Bombs fits into the larger context of many cities' constant effort to criminalize the homeless. Section LA. provides a contextual and statistical analysis of poverty in the United States. Section LB. details how cities attempt to criminalize the homeless. Section I.C. describes food sharing ordinances and their overall impact on the hungry. Section I.D. depicts Fort Lauderdale Food Not Bombs.
Poverty in the United States
Context is essential when considering poverty law. This is because the ways in which one defines poverty, one's beliefs and opinions about struggling persons, and government responses to the poor all shape how a person understands the problems that arise out of poverty.
Poverty can be defined as "a level of income below the threshold considered necessary to achieve a sufficient standard of living." (7) It is important to discuss poverty in terms of "relative deprivation," which is defined as the absence or inadequacy of those diets, amenities, standards, services, and activities that are common or customary in that society. (8) In 2017, the official poverty rate in the United States was 12.3%, meaning that 39.7 million people were living in poverty. (9) Although evidence shows that overall poverty rates are declining, (10) the effects of poverty continue to severely and disproportionately affect certain subgroups of the population, including single-parent households and minority neighborhoods. (11)
There is strong statistical evidence (12) that parents' income will affect their children's future income, causing rates of relative intergenerational mobility to be flat. (13) In terms of absolute mobility, in the last few decades, there has been a sharp decline, meaning that most Americans did not surpass their parents' family income. (14) Additionally, geographic location is important for mobility. (15) Children who move away from low-mobility areas the earliest and the fastest receive the greatest benefits. (16) There is even a gender gap, as in some ways, boys may feel the effects of poverty more acutely than girls. (17) Further, education can positively affect a child's trajectory. (18) Specifically, a college education can radically reduce the correlation between parents' incomes and their children's future incomes. (19) Yet, a child's likelihood of going to college after high school is correlated to household income. (20) Moreover, poverty even has concrete effects on a person's longevity. (21) Due to persistent systemic inequities, these conditions and circumstances are often well beyond the control of the children they inevitably affect. Thus, is poverty really a choice?
The poor have been classified in two ways: as undeserving or deserving persons. (22) Undeserving poor persons do not "deserve" sympathy from society, because they brought their poverty on themselves through perceived behavioral or moral deficiencies. (23) This view attempts to justify America's callous treatment of the poor by neither providing needed services nor compassion to this segment of the population. (24) However, there are other explanations of poverty besides personal failure. (25) Deserving poor persons are those who are poor due to unfortunate or inevitable circumstances that are no fault of their own. (26) The deserving poor are in poverty because of "forces that are much larger and more powerful than they are." (27)
Overall, statistical evidence (28) proves that collectively, those facing poverty are not doing so as a choice. Unfortunately, "there are very high, structural barriers to social mobility in the U.S.," but "these barriers are not insurmountable, and can be lowered through the sustained application of good policies." (29) However, most cities do not have "good policies" in place.
Criminalization of the Homeless
People living in poverty face disproportionate exposure to criminal sanctions through homelessness. (30) Homeless people are eleven times more likely than members of the general population to be incarcerated. (31) The definition of "homelessness" includes, broadly, individuals who "experience a spell of being without a home during a given one-year period." (32) According to the U.S. Housing and Urban Development's Annual Homeless Report to Congress, 553,742 persons experienced homelessness on a single night in 2017. (33) It is evident that homelessness is a pervasive problem in the United States. (34)
There is a common misperception that everyone who is in poverty is homeless and vice versa. (35) However, regardless of a person's technical classification, the portion of the population that is homeless on any given night no longer receives humane treatment. (36) Cities have adopted anti-nuisance laws to attempt to make the homeless population "less visible and less intrusive to urban residential and business communities." (37) Cities and states have criminalized typical acts that homeless persons must partake in. (38) Hence, by engaging in basic life activities, the homeless are now deemed to be breaking the law. (39) This criminalization creates a pipeline to prison for those who are already in need, and therefore is counter-productive. (40)
Myths (41) surrounding the issue of homelessness result in people accepting false narratives and supporting the passage of laws that criminalize homeless persons and volunteers. (42) Correcting the misconceptions surrounding homelessness could go a long way toward ending the mistreatment of the homeless in the United States. (43) But now, city and state legislatures are enacting laws to criminalize the homeless, and the judiciary is arguably experiencing compassion fatigue by "appear[ing] less willing to uphold individual rights for the homeless." (44)
Continuing the Trend of Criminalization Through the Use of Food Sharing Ordinances
Not only are homeless individuals criminalized for engaging in life-sustaining activities, but cities are also criminalizing volunteers for publicly engaging in food sharing with the homeless. (45) Though food sharing bans are commonly referred to as a criminalization of the homeless population, this type of ban more broadly affects the larger portion of the population that is hungry, regardless of whether they are homeless. (46) In other words, the ordinances specifically affect the segment of the population that is "food insecure." (47)
In 2017, forty million people in the United States, including more than twelve million children, struggled with hunger. (48) On a daily basis, one out of every six Americans goes hungry. (49) Addressing hunger is crucial, as it causes innumerable physical, mental, and emotional health consequences that can significantly worsen if they are not addressed. (50) Food sharing ordinances are no help, as they encourage society to take steps in...