A federal judge this week issued a preliminary injunction against the city of Houston preventing it from enforcing an ordinance prohibiting feeding more than five needy persons anywhere, including public property, without a permit.
In a ruling issued Wednesday, U.S. District Judge for the Southern District of Texas Andrew Hanen agreed with the Houston chapter of Food Not Bombs (FNBH), a volunteer group that distributes free food in cities around the world, that the The city of Houston’s months-long crackdown on food sharing was unlikely to survive constitutional scrutiny.
“While [Houston’s] efforts to unify and streamline an effective solution to homelessness and feed the hungry may make good political sense,” Hanen wrote. “being sensible is not always the same as being constitutional, especially when the consequence of that policy is to limit the expressive conduct of those who protest government policy.”
Last summer, Houston police began fining FNBH and other local activists using the 2012 ordinance. City officials want them to move to an approved parking lot for all homeless services, but activists say they have the First Amendment right to hand out free food in a downtown public park, where they have operated without controversy for a decade, with or without the city’s permission.
The Texas Civil Rights Project filed a First Amendment cause in January on behalf of FNBH. The lawsuit alleges that Houston’s anti-food-sharing ordinance is unconstitutional both on its face and as applied to FNBH by imposing an invalid prior restriction on activists’ protected First Amendment rights.
Houston police issued 96 citations for violations of the ordinance, according to the Texas Civil Rights Project. prohibiting providing free food to more than five “needy” people in outdoor locations without permission, potentially totaling more than $192,000 in fines.
However, the city’s attempts to enforce the ordinance have not gone well. One activist was acquitted, while other cases were dropped and delayed due to the prosecutor’s office I can’t find jurors who are willing to fine $500 for the crime of feeding the needy.
In issuing the preliminary injunction, Hanen found that FNBH’s food sharing is expressive conduct under the First Amendment and that the group had a substantial likelihood of success in its claims that Houston’s ordinance, as applied, it creates an unconstitutional prior restriction. Additionally, Hanen agreed that the ordinance was not sufficiently targeted, likely making it an unconstitutional restriction in terms of time, place and manner as well.
The ruling is not surprising; other federal courts have reached similar conclusions. The United States Court of Appeals for the 11th Circuit governed in 2018 that handing out food was “expressive conduct” protected by the First Amendment. That decision was a response to a lawsuit filed by Fort Lauderdale’s Food Not Bombs chapter.
Randy Hiroshige, an attorney with the Texas Civil Rights Project, said in a news release that the injunction was “a huge victory for our community.”
“This is the first step in defending the First Amendment rights of food-sharing organizations in Houston and rejecting the city’s cruel ordinance,” Hiroshige said. “Feeding our neighbors shouldn’t be a crime: Food Not Bombs has done vital work in Houston, and it’s time for the city to recognize the real harm this ordinance has caused. TCRP will continue to work with Food Not Bombs and members of the community to ensure that the ordinance is overturned and all Houstonians who need it can access a hot, healthy meal.”
Houston City Attorney Arturo Michel says in a statement to Reason that Houston Mayor John Whitmire “is committed to working together to resolve differences and agree on an ordinance that allows expression and provides a safe and healthy environment in the Central Library and elsewhere for the homeless and their neighbors.”
“The judge’s order recognized that there were competing interests,” Michel says. “Food not Bombs has a First Amendment right to express its opinions. The city has an equally important right to ensure public safety and safeguard public health.”