violations of their first and fourteenth amendment rights plaintiffs request that this court find that the district court aired when it failed to recognize that plaintiffs are engaged in constitutionally protected first amendment activity when they hold political demonstrations in straining and park which is a traditional public form in the city of fort lauderdale and they share food to symbolically communicate the message that's communicated by the group's very name food not bombs the city has utilized is don ordinance and a park rule to prohibit this activity completely in public space if as it releases the plaintiffs as part of their political protests in the city the zoning ordinance and the park rule don't prohibit food sharing generally they only perhaps food sharing if it's communicating particular message that is if it's to meet a person's physical needs the city i ask you a broad overall question as you dive into your argument do you contend that the first amendment issue is need to go to a jury because there are disputes of fact about for example the way that the client distributes the food and what sort of context it does that in or do you think that on the record that the district court had before it you're entitled to judgment as a matter of law on whether or not well those that took two reasons for that the argument one is that the court misapplied the law the others are factual issues there are unresolved or should be resolved by a trier of fact and then the law applied well are you are you conceding that there is not one factual issue involved in this case certainly there are it's a huge concession if you want to make  conceding that they are you contending that there are no material facts an issue that's correct so you so one side wins or loses on summary judgment that's correct judge i believe that  the part of your part of your brief and that's the reason i asked you the question part of your brief says that the district court failed to take into account a certain number of facts or at least facts viewed in the light most favorable to you in the record fail to draw inferences in your favor and that starts to sound like the district court was resolving factual issues and that was in its rol at summary judgment you should send it back and there has to be at least some fact finding by a jury for example the question of whether or not based on your experts declaration whether or not food sharing is expressive in the general sense now whether it's in title to first a member attention that's a legal question for the court but there may need to be some subsidiary factual findings on those basic issues and that's what i to find out from you and i think judge tjoflat to whether you think that there are some things that need to be resolved and that's why summary judgment was inappropriate or whether you think either you win across the board or the city argument allegation like like you did in orlando well one one perception when you're feeding the poor is that there is charity going on out there and people are doing something for the poor that the government is not appropriately doing but besides that we have an obligation to look after the poor that's not that's a message that somebody watching the poor being fed might proceed reasonably that's a fact issue whether or not whatever is going on out one hand you say this is not in a charitable work but on the other hand you talk about feeding the poor or going all the way back to biblical biblical days so i don't know where you are  fed in a public place and so as that first of all the observer would not conclude that a charitable act was going on as a matter of law they were not being there so they were being fed not out of a responsibility to look after the poor of citizens but they were just being fed it and it doesn't make any difference but there's no constitutional implications that's that's your argument well i think i think so i don't know what's left of your argument that a good thing the poor is not part of it i suppose predicate around with a sign once in a while there is a sign so the observer as a matter of law would disregard feeding the poor and look at the sinus at your consider that this was being done out of noblesse oblige that people have a responsibility historically to look after the poor that's not a message at all as a matter of law the only message that's left is what what i think in our case certainly you do consider the factual circumstances we are but we just were eliminated one of them a major one of my view so what is left is what i'm trying to say i'm not sure i understand the question i'm going to try to answer at that's not a question it's a statement you you have conceded that feeding the poor is irrelevant as a matter of law i jump leave that i have i think that what are our clients are doing is they're feeding poor and hungry hungry people as a symbolic expression of their message that society needs to change so that we're taking care well i mean well but that's obviously when you feed the poor you're sending a message that to other people in society that they'll be doing the same thing that's part of charity but as i understand your argument this is not charity this is a matter of law therefore feeding the poor or for charitable purposes is irrelevant doesn't have any constitutional significance even though a un observer might observe that i knew you know that that's not our argument what we're saying is that our our clients are not a cheery in the sense that they're not a traditional i didn't say that you were charity and and and talking about what an observer think what people are big foot in the part right absolutely and i think that and you know in terms of what the nuances to their message in addition to charity which might be the message that's inferred by a reasonable observer as long as somebody is inferring that they're actually communicating a message that's enough to satisfy that prong of the  me tell you why i think we may be having a little bit of trouble getting our hands around exactly what you're trying to argue want to peel assume this different scenario that members of food  bombs go out into let's say stranahan park they're all dressed in very different ways they have nothing that identifies them as members of this organization or that portrays any sort of message through a printed t shirt or a placard or a sign or anything else and then each of them has a box lunch and they spread out and farm out through the park and each of them tries to find a person in need and gives them the box lunch is or expressive conduct protected by the first amendment in that case it would depend on whether there was an intent to convey the t that's part of the tests right so let's say that let's assume that yes they all had the intent to convey the same message that food not bombs has about the second part of the tests what a reasonable observer would believe was expressive w they would perceive you can't tell right it would be a coup and that's not our situation i know i know it's not right i'm trying to circle back to it to the factual the fact that the facts are at issue here i'm asking not telling you i don't know that that was the question and that it as it relates to our clients activity in other words you may not be able to divorce you may not be able to divorce as the district court seemed to do had to know whether that was right or wrong that's one of the things we've got to figure out the context in which the food sharing and giving was taking place right but if that's the case then going back to our earlier questions you may be back to factual issues because unless you're going to have a single district judge on the record you have for the hypothetical i gave you determine as a matter of law what a reasonable observer would or would not perceive then you've got some issues i think that what i want to think about all that where you list below the argument i think you maybe did some time to ponder the question from the let me tell you right off what concerns me good more in my view forget what they're they're arguing i'm just going at the facts in my view feeding the poor in a public place sen a message to somebody observing regardless of the intent of whoever doing the feeding it's that it sends a message and the message is that protected by the first amendment  my problem with the the legislation is this i understand that other people charges or other people can have picnics or feed people in the park and that's all right what you can't do is feed the poor so that to me is content driven your honor there's that how do you how do you reconcile how do you reconcile the rotary club having a picnic out there  tried having a picnic and maybe the atheist have a picket back there can somebody else has a picnic out there and they're all sitting there eating in the park but here comes somebody with some food and they're feeding the poor and that that's not permitted it's permitted because not no because it's a social service and that's not permitted it is i understand that you know it is permitted because there's two regulatory schemes one deals with the social service aspect which is under the cities you on the arse the other feedings the churches the picnics things that's a corporate events are done under a separate series of laws in the ordinances there are different requirements there they have to provide insurance you have to pay for city services police make they may have conceded their whole case they are that is their problem i'm not but i'm looking but they are appealing a summary judgment correct overhead so when you appeal the summary judgment there are two arguments one is the court m applied the law or the court file the fact that this this court found fact that feeding the poor is not protected that's not what the court if it's a one line satins that it's not protected it's not protected because of the inherent authority lack of inherent conduct at issue that this court and i don't know that he looked it made a flat statement that feeding the poor as i read his opinion in one sentence at the conclusion is not protected it's not feeding the poor it's feeding to begin with the same thing that this court at seven years ago in the first issuance of the first vagabond case it's too ambiguous and too common an act to convey a message and judge shorten touched it when you look at the photographs actually that they've appended that forty dash thirty one and look at the videos what do you see take away the signs don't look at the signs or anything else that you see folks sitting gathered eating something we do three times a day the objection you're trying to take away the context and that's what the district court did too but if you had think of a parade right if you have ten thousand people walking down the streets of atlanta down peachtree on a given day and you take away from a photograph or a video messages on their shirts banner ads placards flags or whatever how do you have any idea whether or not they're trying to convey a message or not we're just want to go out for a friendly walk and hurley touched upon that very issue and hurley prior to making the determination and going to any sort of conduct a parade the point they made is the only point in a parade is to make a point it's inherently expressive you're not in a parade just to go from point a to point b so in that there's a even if you look at the context suggested by john we're looking at the facts at the facts about pictures but under fair we can't look at the explanatory language we're looking strictly at the conduct and if we're looking at the conduct and we're looking at the context of where the park is who they're feeding strictly that alone you're still in the same place so if you have if you have if you have somebody feeding with a t shirt that says you know we are doing this because we should spend our money on the poor and not the military so what you do is when you take a look at the snapshot of that person doing that food sharing or should you blot out you edit out the t shirt and what the t shirt says no but that's explanatory language but you your brother says so you're saying you blo up at nine o'clock on a work day or week at whatever it is your argument is as a matter of law there is no protected speech correct ok is that what they were doing feeding poor people i know we've said people the question what summary judgment it's an objective standard not subjective so even if you have weakened we've seen it all along that we have no disputes in fact because so you so you agree that food sharing is to her concessions i want to try to hold you to the same standard you said that there are no disputes a fact right right that means you accept all the facts in the record in the light most favorable to them correct you have an expert affidavit struck right district court denied your motion to strike rejecting your argument that it was full of legal conclusions and part of that expert affidavit says that food sharing doesn't it doesn't resolve the ultimate question of whether it's protected by the first amendment and it doesn't state an opinion on whether or not the ordinances are faulty all it says is that from time in memoriam food sharing in giving has an expressive content and what does a district court supposed to do with that if you think that there are no disputes of fact same thing the first vagabond the session seven years ago to say that we're not here to say that we can never be communicative but in this case well i know what's fact you know what just take a hypothetical case of subset of in a park when some food and there are poor people lined up there in rags and they're being fat does that case your argument is there is no first right you say that but the but the district court's ruling was not tied to a very specific determination of what happened here the sentence said judge joe alluded to earlier is this this court finds that outdoor food sharing and no qualifications does not convey plaintive alleged particularly rise message unless it is combined with other speech such as that involved in plaintiff's demonstrations correct and that's a pretty broad statement it is and it's consistent with the fair opinion don't our cases say that it has to just convey some message and not necessarily viewed as a particularly message to get protection holliman in her early do but in the context of and again in her early having made the determination and it's interesting in that opinion before they make that declaration they give the examples of inherent communicative conduct the armband the flag and things of that sort in the context of the parade again it's inherently there's only one point to a parade to make a point the court was correct in saying that look you don't need to know every single person specific intent as long as a message is a coming across but the court had already recognized that a parade in and of itself was expressing same in harlem and when judge just flat out wrote that you know raising the arm in the context of in response to the pledge of allegiance that at least some of the students may have known and probably knew what he was doing but again people don't go around all day going like this this conveys a message speech that's protected there can be if somebody says makes a speech here's why we're feeding the poor or arguably if not oh is that needed in addition to the message that just the feeding poor we're feeding the poor because there's a moral obligation to feed the poor of this obligation they don't say that in the city and that's not that's that's that's hubris they don't say a word they just let the people watch them feed the poor but you say that not protected i will concede though that the the obvious message and handing somebody a plate of food in the context that we're looking at at the park the poor they're feeding can convey a message that's correct in handing the pla you're say on the facts of this case about correct because there are there can as a matter of lines there are no factitious from the point correct because it's an objective standard and they've completely denounced they've locked themselves and to one message and one message only when you hate hand somebody a pl to prohibit the serving of food to the poor in a public park from that but somebody else could go out there and have a picnic you your argument would be that prohibiting the feeding of the poor would not be content neutral that's your argument but if comp content yes but we're not i would not think that it's not being prohibited they just have to it's being regulated ok are regulated whether it's for certain services or whether it's not for source of services they're both being regulated they're allowed to do it they just have to go through the permitting process that's been set forth which they haven't done and they haven't attempted to do it let me ask you this question let's go let's go to wasn't so what triggers what triggers the ordinances requirement if it's defined as a social service which is content based not necessarily from force that is it but if you are regulating and i'm assuming that we've gotten past the first amendment point so correct you have to accept that even though i know you disagree vehemently with it greg if you are regulating expressive conduct only because it conveys a certain message or falls into a certain category of speech that is content based regulation is it not if we look at those in other words do not necessarily because that the  legislative act here doesn't target the expression it targets the secondary effects same thing that happened once or so what's the difference in secondary effect between a church having a picnic on a park and feeding the same number of people the the fact on the the actual damage to the park things of that sort again with the other types of feedings they go through a separate agreement with the city through the city's event ordinance where they have to pay for city services to take care of that they have to provide insurance they have the city they have to hold the city they have to have a hold harmless agreement with the city so those folks just don't go out there and do it they have to have an event agreement that has all those things and so if you take two box lunches and you're doing it as a social service to feed the poor but all you can afford that day is to buy two lunches at mcdonald's and hand them out to the poor you're covered because here there's yes or no if it's to the scenario again is two people and you're doing it as a social service presuming it fits the definition of social circle i'm asking you to look at the facts yes it would because again it's a land based use where one by one to one mcdonald's happy meal i covered now i say i got an extra five dollars today i'm going to go buy a happy meal and i'm going to go give it to the first you know poor person i see in the park and i covered under the definition i don't believe that would fall is why why and why does to cover it and one not because of the intent behind the definition of social services the intent to house a person on the street supposed to know the intent of the statute but they decide what's protected and what's not protected what's covered what's not covered they know they know what they're doing in the purpose for you just told me that too gets covered and one does not well not necessarily want to you have to look at those are my facts you told me that every day both of them are services i'm doing the exact same thing except in the second hypothetical i don't have enough money to feed two people i can only feed one night you told me two is covered one is not covered and i want to know how the reasonable person on the street is able to gather that distinction in terms of figuring out what's covered and what's not covered by the ordinance that number is not covered by the ordinance what so so one is covered theoretically not the are radically actually one is cover one person i don't know that that would be a service under the definition of what service what is service mean services defined as  and we're obviously stuck with what is defined in the ordinance and the service provided to the public to address public welfare and health such as but not limited to the provision of food hygiene care group rehabilitative recovery assistance ok so i provided i provided food and i've done it for a social reason for social welfare i'm covered to reasonable argument so if it if it falls under that you would not be having this debate and we're not sure wh covered and what's not covered doesn't that cause you any vagueness concerns i think i think that we know what's covered it's just as well because because you just know it's like not sanity just know it when you see it no but it's  like the again citing again the case law when we're dealing with the written word we cannot put every hypothetical into an ordinance it's an artful way of perhaps stating it but there's no way that we can comprehensive cover every single scenario in the ordinance we classify it as a social service because based on the secondary effects not on the message but on the secondary effects you don't have the secondary effects with one or two people that are possibly just having a sandwich the problem and the reason that it went to a land based use type of ordinance i type of law is because in this case it's a repetitive every week commandeering of a park you're using that land for your purposes at least once a week and taking so the land base aspect of it versus the outdoor event which is dealing with the other ones they have different requirements but because they have different secondary effects and i see that i'm out of time it's not thank you very much for answering the question back in this case it's our position that the undisputed facts in the record if the appropriate legal test is applied to them that it shows that our clients are engaging protected person and activity alternatively we asked in our initial brief that if this court finds that there are disputed issues of material fact that this court reversed a summary judgment and remain for a trial on liability in this case and i just have a couple of points to  respond to mr boyle is argument the first is that the factual context is relevant you don't just ignore the fact that this is taking place within the context of a protest and the us supreme court decisions in this court's decisions really emphasize that point in some of the flag burning cases for example there's a recognition that they're taking place in the middle of a political protest to protest a particular thing for example u s involvement in in iran in monroe versus fulton county or the flag burning taking place at a political protest in connection with the republican national convention this court doesn't have to just pretend like that context doesn't exist in the context of deciding this case the other point is that if it's mr b who concedes it can be that share feeding the poor is inherently expressive then what we do look at is our clients intent to convey their particular message and whether a reasonable person would infer some sort of message now what the court erred in doing is that if found that the food sharing doesn't convey plaintiffs allege particularized message unless it's combined with other speech but hurley's instructive on this point where the court said that but the fact that there are multifarious voices or that a plane of has an edited it down it's precise message to one specific theme doesn't mean that it's any less worthy of first amendment protection the fact that they are communicating a message  that society should divert funds from military to people in need can be communicated in various other ways during the protests but the sharing of food is really the core expression to people in need to communicate that food is a human right and that society should address those needs and the other point about the interests that mr boileau mentioned that are those interests are not implicated by small groups for example  and big point is that other individuals who are sharing food for other purposes can get permits our clients cannot it is banned in every public forum in the city because the city is  them but you haven't tried to get them right there it's a privilege use in all city parks and in anything i have tried to get any permits for any of your activities i know because this city had not set up the permit scheme at the time that it started arresting people and then when it suspended enforcement of the ordinance it still has not and that's that's in the record a nd i see i'm out of time