[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-13604

________________________

D.C. Docket No. 0:15-cv-60185-WJZ

FORT LAUDERDALE FOOD NOT BOMBS, 

NATHAN PIM, 

JILLIAN PIM, 

HAYLEE BECKER, 

WILLIAM TOOLE, 

 Plaintiffs - Appellants, 

 versus

CITY OF FORT LAUDERDALE, 

 Defendant - Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(August 31, 2021)

Before LAGOA, HULL, and MARCUS, Circuit Judges.

MARCUS, Circuit Judge: 

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This case presents the second appellate skirmish in Fort Lauderdale Food 

Not Bombs’s (“FLFNB”) challenge to Fort Lauderdale’s efforts to shut down the

practice of sharing food with the homeless in downtown Stranahan Park. FLFNB 

hosts food-sharing events in order to communicate the group’s message that scarce 

social resources are unjustly skewed towards military projects and away from 

feeding the hungry. In Round One, a panel of this Court held FLFNB’s food 

sharing to be expressive conduct protected by the First Amendment and remanded 

the case to the district court to address whether the City’s regulations actually 

violated the First Amendment. Now, in Round Two, we must decide whether Fort 

Lauderdale Park Rule 2.2, which requires City permission for social service foodsharing events in all Fort Lauderdale parks, can withstand First Amendment 

scrutiny as applied to FLFNB’s demonstrations. 

It cannot. The Park Rule commits the regulation of FLFNB’s protected 

expression to the standardless discretion of the City’s permitting officials. The 

Park Rule bans social service food sharing in Stranahan Park unless authorized 

pursuant to a written agreement with Fort Lauderdale (the “City”). That’s all the 

rule says. It provides no guidance and in no way explains when, how, or why the 

City will agree in writing. As applied to FLFNB’s protected expression, it violates 

the First Amendment. It is neither narrowly drawn to further a substantial 

government interest that is unrelated to the suppression of free expression, nor, as 

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applied, does it amount to a reasonable time, place, and manner regulation on 

expression in a public forum. Accordingly, we reverse the district court’s order 

granting summary judgment in favor of the City and remand for further 

proceedings consistent with this opinion. 

I.

A. 

Fort Lauderdale Food Not Bombs is a nonprofit unincorporated association 

affiliated with the international advocacy organization Food Not Bombs. FLFNB 

advocates the message “that food is a human right, not a privilege, which society 

has a responsibility to provide for all.” Fort Lauderdale Food Not Bombs v. City 

of Fort Lauderdale, 901 F.3d 1235, 1238 (11th Cir. 2018) (“FLFNB I”). 

At the center of FLFNB’s efforts are its weekly food sharing events in Fort 

Lauderdale’s downtown Stranahan Park. Stranahan Park “is known in the 

community as a location where the homeless tend to congregate and, according to 

FLFNB, ‘has traditionally been a battleground over the City’s attempts to reduce 

the visibility of homelessness.’” Id. “At these events, FLFNB distributes 

vegetarian or vegan food, free of charge, to anyone who chooses to participate. 

FLFNB does not serve food as a charity, but rather to communicate its message 

‘that [ ] society can end hunger and poverty if we redirect our collective resources 

from the military and war . . . .’ Providing food in a visible public space, and 

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partaking in meals that are shared with others, is an act of political solidarity meant 

to convey the organization’s message.” Id. 

“FLFNB sets up a table underneath a gazebo in the park, distributes food, 

and its members . . . eat together with all of the participants, many of whom are 

homeless individuals residing in the downtown Fort Lauderdale area. FLFNB’s 

set-up includes a banner with the name ‘Food Not Bombs’ and the organization’s 

logo -- a fist holding a carrot -- and individuals associated with the organization 

pass out literature during the event.” Id. This includes flyers to convey FLFNB’s

social-justice message that all who are hungry deserve food. 

B. 

Sometime before 2000, the City of Fort Lauderdale promulgated Park Rule 

2.2: 

Parks shall be used for recreation and relaxation, ornament, light and 

air for the general public. Parks shall not be used for business or social 

service purposes unless authorized pursuant to a written agreement with 

City. As used herein, social services shall include, but not be limited 

to, the provision of food, clothing, shelter or medical care to persons in 

order to meet their physical needs.

Some years ago, Arnold Abbott, who led a program to feed the homeless on a 

public Fort Lauderdale beach, obtained a state-court injunction against the Park 

Rule on the ground that it violated Florida’s Religious Freedom Restoration Act, 

Fla. Stat. § 761.03. (Abbott is not affiliated with FLFNB.) The injunction required 

the City to either stop enforcing the Park Rule, designate an area in which Abbott 

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could lawfully distribute food, or specify objective criteria for permitted foodsharing locations. See Abbott v. City of Fort Lauderdale, 783 So. 2d 1213, 1215 

(Fla. Dist. Ct. App. 2001). 

The City stopped enforcing the Park Rule until October 22, 2014, when it 

enacted Ordinance C-14-42 to amend the Fort Lauderdale Uniform Land 

Development Regulations (“ULDR”). The City enacted this ordinance at least in 

part as an effort to bring itself into compliance with the state-court injunction so 

that it could resume enforcement of the Park Rule. In the years leading up to the 

enactment of Ordinance C-14-42, some citizens had complained about a series of 

problems they believed to be associated with feeding the homeless in public 

spaces, including safety risks, a lack of proper water and restroom facilities, and 

the negative impact this conduct may have on surrounding communities. In 

January 2014, the City Commission held a workshop on the “the homeless 

population in the City of Fort Lauderdale,” where stakeholders debated public food 

distribution and related issues. 

Ordinance C-14-42, as relevant here, (1) defines an Outdoor Food 

Distribution Center as “[a]ny location or site temporarily used to furnish meals to 

members of the public without cost or at a very low cost as a social service”; (2) 

defines “social service[]” as “[a]ny service provided to the public to address public 

welfare and health such as, but not limited to, the provision of food; hygiene care; 

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group rehabilitative or recovery assistance, or any combination thereof; 

rehabilitative or recovery programs utilizing counseling, self-help or other 

treatment or assistance; and day shelter or any combination of same”; and (3) 

requires a conditional use zoning permit for the operation of an Outdoor Food 

Distribution Center in Stranahan Park.1

 The other city parks in Fort Lauderdale (of 

which there are more than 90, City of Fort Lauderdale, City Parks, 

https://www.fortlauderdale.gov/departments/parks-recreation/city-parks (last 

visited June 29, 2021)) are zoned so that public food-sharing events are not 

allowed at all, even by permit. Thus, the Ordinance prohibits social service food 

distribution in most parks and does not provide for food sharing as of right in any 

park. 

To obtain a conditional use permit, an individual or group must wind

through a lengthy process for receiving a zoning variance. This involves an initial 

application to the Development Review Committee (which meets twice a month); 

upon approval, a subsequent submission and presentation to the Planning and 

Zoning Board (which meets once a month); and then a subsequent review by the 

1 Ordinance C-14-42 implemented these regulations of outdoor food distribution by adding new 

provisions -- ULDR §§ 47-1B.31(B)(4), (C)(2)(c) -- and by making additions to ULDR §§ 47-

6.12; 47-6.13; 47-7.10; 47-8.10; 47-8.11; 47-8.12; 47-8.13; and 47-13.10. We refer to these 

specific components of Ordinance C-14-42 -- those that regulate outdoor food distribution -- as 

the “Ordinance.” Other provisions of Ordinance C-14-42 regulate other social services not 

relevant to this case, such as providing addiction treatment centers. The constitutionality of the 

other provisions of Ordinance C-14-42 is not before this Court. 

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City Commission. The City Commission has 30 days to decide whether to conduct 

its own review of the application; if the City Commission does not, the application 

is considered approved and returns to the Development Review Committee for a 

check to make sure the final permit is the same as the plan the Zoning Board 

approved. There is no deadline for a permit to issue, and the City’s zoning 

administrator could not provide an average time for resolving applications. 

Applicants must pay a fee for City staff time spent reviewing an application; the 

fee can rise as high as $6,000, which the City may reduce in its unguided 

discretion. 

Permitting requirements for outdoor food distribution include that the 

proposed activities must not impose a nuisance or cause a change to the character 

of the area, that the use be 500 feet away from similar uses and residential 

property, that food be timely served and stored at safe temperatures, that a certified 

food service manager attend the event, and that the site provide handwashing, 

wastewater disposal, and restroom facilities. 

Soon after the Ordinance passed, the City began enforcing it along with the 

Park Rule. Police officers interrupted and stopped an FLFNB demonstration in 

Stranahan Park on November 7, 2014. On that day, the city arrested and cited 

FLFNB members and other demonstrators for violating both the Ordinance and the 

Park Rule. The City also issued citations to participants in FLFNB demonstrations 

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on November 14 and November 21. FLFNB members Nathan Pim, Jillian Pim, 

Haylee Becker, and William Toole were not personally arrested or cited, but were 

present at each of these events and witnessed their co-demonstrators being arrested 

and cited on November 7 and November 14. They did not directly witness any 

arrests or citations at the November 21 event; police later delivered a citation to the 

home of a participant in that demonstration.

The City also enforced the Ordinance and the Park Rule against Abbott, who 

moved the state court for an order to enforce its 2000 injunction and halt 

enforcement. See Mot. to Enforce Inj., Abbott v. City of Fort Lauderdale, No. 99-

03583 (05), Dkt. No. 37 (Fla. Cir. Ct. Nov. 12, 2014). The Seventeenth Judicial 

Circuit Court in Broward County issued a temporary stay on December 2, 2014,

and the City stopped enforcing the Ordinance along with the Park Rule. Even 

though the state-court stay expired on January 1, 2015, the City voluntarily 

continued its non-enforcement, and has not enforced the Ordinance or the Park 

Rule since. FLFNB continues to hold weekly food-sharing demonstrations in 

Stranahan Park. 

C. 

Soon after the state-court stay expired, on January 29, 2015, FLFNB and 

members Nathan Pim, Jillian Pim, Haylee Becker, and William Toole (the 

“Individual Plaintiffs,” and, together with FLFNB, the “Plaintiffs”) sued the City 

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in the United States District Court for the Southern District of Florida pursuant to 

42 U.S.C. § 1983. They alleged that the Ordinance and the Park Rule violated 

their First Amendment rights to free expression and expressive association, and 

that these regulations were unconstitutionally vague, both facially and as applied. 

The Plaintiffs sought declaratory and injunctive relief as well as compensatory 

damages. 

After discovery, the parties cross-moved for summary judgment. The 

district court granted the City’s motion on all claims, holding that FLFNB’s foodsharing was not expressive conduct entitled to First Amendment protection. Fort 

Lauderdale Food Not Bombs v. City of Fort Lauderdale, No. 15-60185-CIV, 2016 

WL 11700270, at *9 (S.D. Fla. Sept. 30, 2016). In an analysis heavily influenced 

by its initial holding that FLFNB was not engaged in expressive conduct, the 

district court concluded that the Ordinance and the Park Rule did not infringe on

the Plaintiffs’ rights to expressive association. Id. Finally, the district court held 

that the Ordinance and the Park Rule were not unconstitutionally vague. The court 

acknowledged that this holding was also influenced by its conclusion that FLFNB 

was not engaged in expressive conduct. Id. at *10. 

The Plaintiffs appealed the trial court’s judgment to this Court. On

November 7, 2017, while the appeal was pending, the City repealed the Ordinance 

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insofar as it regulated outdoor food distribution. However, Fort Lauderdale did not 

repeal the Park Rule, which remains on the books. 

In Round One, a panel of this Court reversed the district court’s summary 

judgment order. FLFNB I, 901 F.3d at 1245. We applied the two-part inquiry 

drawn from Spence v. Washington, 418 U.S. 405, 410–411 (1974), and held that 

FLFNB’s demonstrations were expressive conduct protected by the First 

Amendment. FLFNB I, 901 F.3d at 1240–43. First, the panel had little difficulty 

concluding that FLFNB “inten[ded] to convey a particularized message” with its 

food sharing events. Id. at 1240 (quoting Spence, 418 U.S. at 410–411). FLFNB

shared food in order “to convey that all persons are equal, regardless of socioeconomic status, and that everyone should have access to food as a human right.” 

Id. at 1240–41. 

Next, the panel closely examined the circumstances surrounding FLFNB’s 

food sharing in order to apply the second part of the Spence inquiry -- whether a 

“reasonable person would interpret FLFNB’s food sharing events ‘as some sort of 

message.’” Id. at 1242 (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 

1252, 1270 (11th Cir. 2004)). We held that five circumstances surrounding 

FLFNB’s events would lead a reasonable observer to discern a message. First, 

FLFNB wasn’t just a group of acquaintances eating together in a park -- it adorned 

its events with tables and banners and distributed literature explaining its political 

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message. Second, the events had “social implications” because they were open to 

all comers. Id. Third, FLFNB held its food sharings “in Stranahan Park, a public 

park near city government buildings.” Id. Public parks, the panel noted, are 

“historically associated with the exercise of First Amendment rights.” Id. (citation 

omitted). Fourth, treatment of the homeless was an issue of substantial public 

concern and discussion in the Fort Lauderdale community. Indeed, the City had 

held a public workshop on the issue, and local media had covered “the status of the 

City’s homeless population” for years. Id. Fifth, the sharing of food with others in 

order to communicate a message was a tradition that “date[d] back millennia.” Id.

at 1243. All of these circumstances combined to “put[] FLFNB’s food sharing 

events on the expressive side of the ledger.” Id. at 1242. 

Since each of the district court’s merits holdings had turned in substantial

part on its erroneous conclusion about expressive conduct, the panel remanded the 

case for the district court to reconsider these issues as well as to address in the first 

instance whether the Ordinance and the Park Rule violated the First Amendment. 

Id. at 1245 & n.2.

On remand, the district court took supplemental briefing, including on the 

effect of the repeal of the Ordinance. For a second time, the district court entered 

summary judgment in favor of the City. The court held that the Plaintiffs had 

standing based on the City’s disruption of their events, and that FLFNB was a 

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“person” with a cause of action under 42 U.S.C. § 1983. The court noted that 

while the repeal of the Ordinance mooted the Plaintiffs’ claims for declaratory and 

injunctive relief against the Ordinance, the court still had to rule on its 

constitutionality because the Plaintiffs also sought compensatory damages. Next, 

the district court held that even accepting FLFNB I’s binding holding that the 

Ordinance and the Park Rule interfered with the Plaintiffs’ expressive conduct, 

both regulations passed First Amendment muster as lawful, content-neutral time, 

place, and manner regulations. 

As for the Plaintiffs’ claims that the Ordinance and the Park Rule’s 

permitting requirements acted as a prior restraint by giving City officials unguided 

discretion to block their expression, the district court observed that the regime was 

“somewhat suspect.” After all, Fort Lauderdale’s officials could charge as much 

as $6,000 for the permitting process but could reduce that amount in any way if 

they “fe[lt]” it appropriate. Meanwhile, the Park Rule did not provide any 

standards to guide the exercise of discretion in determining whether to provide

City permission to share food in the park. Even so, the district court concluded 

that the permitting schemes were not subject to either as-applied or facial 

challenges, because the Plaintiffs never applied for a permit and because the 

regulations were “laws . . . of general application” that did not directly regulate

protected expression. The district court also rejected the Plaintiffs’ expressive 

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association arguments, reasoning that the regulations “impose a content-neutral 

restriction on a kind of expressive conduct that is only incidentally associative.” 

Finally, the trial court held that the terms found in the Ordinance and in the Park 

Rule, such as “social service,” were not unconstitutionally vague. 

Again, the Plaintiffs timely appealed to this Court. 

II.

Before we can consider the merits of the Plaintiffs’ claims, we are required 

to address three threshold matters. As for the first one, we conclude that FLFNB is 

a “person” and therefore a proper plaintiff under § 1983 of Title 42. Second, as for

the City’s Ordinance, the Plaintiffs’ claims for injunctive and declaratory relief are 

moot; however, their monetary damages claims arising out of the enforcement of 

the Ordinance are not. Finally, all of the Plaintiffs have standing to bring their 

remaining claims. Our review on each of these issues is de novo. See Hoever v. 

Marks, 993 F.3d 1353, 1357 (11th Cir. 2021); Taylor v. Polhill, 964 F.3d 975, 980 

(11th Cir. 2020); Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 

1328 (11th Cir. 2004). 

A. 

First, the City argues that FLFNB, as an unincorporated association, is not a 

“person” that may bring suit under § 1983, which provides in relevant part: 

Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory or the District of Columbia, 

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subjects, or causes to be subjected, any citizen of the United States or 

other person within the jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the Constitution and laws, 

shall be liable to the party injured in an action at law, suit in equity, or 

other proper proceeding for redress, except that in any action brought 

against a judicial officer for an act or omission taken in such officer’s 

judicial capacity, injunctive relief shall not be granted unless a 

declaratory decree was violated or declaratory relief was unavailable.

42 U.S.C. § 1983 (emphasis added). There is some historical support for the City’s

reading, but this view stands in tension with the text’s ordinary meaning, Supreme 

Court precedent, successive amendments to § 1983, and longstanding, settled 

practice. Absent clear direction from the Supreme Court, we decline the City’s 

invitation to bar all unincorporated associations (other than unions) from being 

able to sue under § 1983. 

“As with any statutory interpretation question, our analysis ‘must begin, and 

usually ends, with the text of the statute.’” United States v. Stevens, 997 F.3d 

1307, 1314 (11th Cir. 2021) (citation omitted). When examining the phrase “any 

citizen of the United States or other person,” “person” must refer to something 

beyond individuals who are United States citizens; otherwise, the term would be 

redundant. See, e.g., Corley v. United States, 556 U.S. 303, 314 (2009) (noting 

that “one of the most basic interpretive canons” is “that ‘[a] statute should be 

construed so that effect is given to all its provisions, so that no part will be 

inoperative or superfluous, void or insignificant’”) (citation omitted and alteration 

accepted). At the very least, the phrase extends a § 1983 cause of action to nonUSCA11 Case: 19-13604 Date Filed: 08/31/2021 Page: 14 of 65
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citizen individuals. Congress enacted Section 1 of the Civil Rights Act of 1871 

(also known as the Ku Klux Klan Act), the original version of what is now § 1983,

in order to enforce the Fourteenth Amendment. See, e.g., Ngiraingas v. Sanchez, 

495 U.S. 182, 187 (1990). The word “person” in the Fourteenth Amendment 

includes not only citizens but also non-citizens within the United States. E.g., 

Graham v. Richardson, 403 U.S. 365, 371 (1971); see also Hague v. Comm. for 

Indus. Org., 307 U.S. 496, 526 (1939) (opinion of Stone, J.) (“It will be observed 

that the cause of action, given by [Section 1 of the 1871 Civil Rights Act], extends 

broadly to . . . those rights secured to persons, whether citizens of the United States 

or not, to whom the [Fourteenth] Amendment in terms extends the benefit of the 

due process and equal protection clauses.”). We also know that the word “person” 

in § 1983 extends to corporations, both municipal and otherwise. See Monell v. 

Dep’t of Soc. Servs., 436 U.S. 658, 687, 690 (1978). Indeed, in Monell, the 

Supreme Court observed that “by 1871, it was well understood that corporations 

should be treated as natural persons for virtually all purposes of constitutional and 

statutory analysis.” Id. at 687. 

However, the Supreme Court has also ruled that Native American Tribes 

seeking to vindicate sovereign rights, States, State officers acting in their official

capacities, Territories, and Territory officers acting in their official capacities are 

not “persons.” Inyo Cnty. v. Paiute-Shoshone Indians of the Bishop Cmty. of the 

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Bishop Colony, 538 U.S. 701, 712 (2003) (reasoning that § 1983 “was designed to 

secure private rights against government encroachment” to reach this conclusion in 

the case of a Tribe suing to vindicate its right to sovereign immunity from state 

process); Ngiraingas, 495 U.S. at 187–92 (examining historical sources and the 

context surrounding amendments to § 1983 to reach this conclusion with respect to 

Territories and their officers); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 

64–67 (1989) (relying on federalism concerns, the Eleventh Amendment, and the 

“often-expressed understanding that ‘in common usage, the term ‘person’ does not 

include the sovereign, and statutes employing the word are ordinarily construed to 

exclude it’” to reach this conclusion regarding States and their officials) 

(alterations accepted and citation omitted). Monell, Ngiraingas, and Will each 

interpreted the first use of the word “person” in § 1983, which relates to which 

entities may be proper § 1983 defendants -- “[e]very person” who under color of 

law causes a deprivation of federal rights shall be liable to the party injured. By 

contrast, today we interpret § 1983’s second use of the word “person” -- “any 

citizen or other person” -- a phrase that delineates which entities may be proper § 

1983 plaintiffs. But these cases are nonetheless instructive, because we “generally 

presume that ‘identical words used in different parts of the same act are intended to 

have the same meaning.’” United States v. Cleveland Indians Baseball Co., 532 

U.S. 200, 213 (2001) (citation omitted). 

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In order to decide whether FLFNB has a cause of action in this case, we 

must determine whether “other persons,” in addition to including non-citizen 

individuals and corporate entities, extends to unincorporated associations. The 

words “other person,” by themselves, do not definitively answer the question. Cf.

Ngiraingas, 495 U.S. at 187 (“[Section 1983] itself obviously affords no clue as to 

whether its word ‘person’ includes a Territory.”). Unlike sovereign entities, there 

is no presumption that unincorporated associations are not persons. To the 

contrary, the ordinary meaning of “person” in legal contexts includes 

unincorporated associations. See Antonin Scalia & Bryan A. Garner, Reading 

Law: The Interpretation of Legal Texts 273 (2012) (“Traditionally the word person

. . . denotes not only natural persons (human beings) but also artificial persons such 

as corporations, partnerships, associations, and both public and private 

organizations.”) (second emphasis added). Thus, the most natural reading of § 

1983 extends a cause of action to unincorporated associations. 

On the other hand, we “normally interpret[] a statute in accord with the 

ordinary public meaning of its terms at the time of its enactment.” Bostock v. 

Clayton Cnty., 140 S. Ct. 1731, 1738 (2020). And in 1871, unincorporated 

associations were not legal persons with the capacity to sue or be sued absent some 

express authorization. United Mine Workers of Am. v. Coronado Coal Co., 259 

U.S. 344, 385 (1922) (“Undoubtedly at common law an unincorporated association 

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of persons was not recognized as having any other character than a partnership in 

whatever was done, and it could only sue or be sued in the names of its members, 

and their liability had to be enforced against each member.”); Wesley A. Sturges, 

Unincorporated Associations as Parties to Actions, 33 Yale L.J. 383, 383 (1924) 

(citing authorities dating as far back as 1884 to observe that “[t]he cases are 

remarkably in accord that, in the absence of enabling statute, an unincorporated 

association cannot sue or be sued in the common or association name”). 

Moreover, reading the word “person” to exclude unincorporated associations 

is fully consonant with the 1871 version of the Dictionary Act, which expressly 

limited “person” to “bodies politic and corporate.” See, e.g., Will, 491 U.S. at 69 

n.8. The Dictionary Act -- a statute that provides general definitions for common 

terms used across the United States Code, see 1 U.S.C. § 1 -- did not expand to 

include “associations” until 1948. See Act of June 25, 1948, Pub. L. No. 80-772, § 

6, 62 Stat. 683, 859 (1948); Lippoldt v. Cole, 468 F.3d 1204, 1214 (10th Cir. 

2006). The 1871 Dictionary Act definition matches the definition of “person” 

found in the first edition of Black’s Law Dictionary, published in 1891, which 

confirms that an entity needed some express authorization in positive law to 

achieve legal personhood. Person, Black’s Law Dictionary (1891) (“Persons are 

divided by law into natural and artificial. Natural persons are such as the God of 

nature formed us; artificial are such as are created and devised by human laws, for 

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the purposes of society and government, which are called ‘corporations’ or ‘bodies 

politic.’”). 

What’s more, the legislative history surrounding the adoption of the 1871 

Civil Rights Act does not suggest any departure from the established legal meaning 

of “person” as it related to the capacity to sue in 1871. See Monell, 436 U.S. at

690 (analyzing the legislative history of Section 1 to interpret § 1983). The 

drafters of Section 1 of the 1871 Civil Rights Act likely did not contemplate that 

unincorporated associations were “persons” under the Act. The Republican 

sponsors of the Civil Rights Act were aghast at reports of widespread vigilante 

violence against federal officials, northern transplants, Blacks, and Republicans in 

the post-war South. These attacks, they believed, were the work of recalcitrant 

Confederates, including individuals organized as the Ku Klux Klan, who faced 

only weak opposition from ineffectual state officials. See, e.g., Cong. Globe, 42d 

Cong., 1st Sess., 320 (1871) (hereinafter “Globe”) (Rep. Stoughton) (“There exists 

at this time in the southern States a treasonable conspiracy against the lives, 

persons, and property of Union citizens, less formidable it may be, but not less 

dangerous, to American liberty than that which inaugurated the horrors of the 

rebellion.”); id. at 820 (Sen. Sherman) (observing that the bill was based on the 

fact that “an organized conspiracy, spreading terror and violence, murdering and 

scourging both white and black, both women and men, and pervading large 

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communities of this country, now exists unchecked by punishment, independent of 

law, uncontrolled by magistrates” and that “of all the multitude of injuries not in a 

single case has redress ever been meted out to one of the multitude who has been 

injured”).

Section 1 itself “was the subject of only limited debate and was passed 

without amendment.” Monell, 436 U.S. at 665. At most, read together with 

statements about the 1871 Act generally, floor discussions of Section 1 suggest that 

both proponents and opponents of the 1871 Act believed that the typical plaintiff 

would be an individual who suffered a violation of constitutional rights, especially 

the denial of the equal protection of the laws at the hands of state officials. Thus, 

for example, proponent Senator Dawes spoke of “citizen[s]” who suffered 

violations of their rights -- phrasing that implies a concern for the individual 

plaintiff. Globe at 477 (“I conclude . . . [that] Congress has power to legislate for 

the protection of every American citizen in the full, free, and undisturbed 

enjoyment of every right, privilege, or immunity secured to him by the 

Constitution; and that this may be done . . . [b]y giving him a civil remedy in the 

United States courts for any damage sustained in that regard.”). For their part, 

Democrats who opposed the passage of Section 1 generally claimed that it was too 

broad, but notably did not argue that the word “person” did anything to expand the 

range of entities that could traditionally sue. They, too, seemed to envision 

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individual plaintiffs. E.g., id. at 337 (Rep. Whithorne) (complaining that “any 

person within the limits of the United States who conceives that he has been 

deprived of any right, privilege, or immunity secured him by the Constitution” 

would be able to sue and conjuring the hypothetical example of a drunk suing a 

police officer who had confiscated his pistol). 

All told, historical context suggests that the word “person” as used in 

Section 1 of the 1871 Civil Rights Act did not extend to unincorporated 

associations. But this does not end the analysis, because we are not interpreting 

Section 1 of the 1871 Civil Rights Act. Instead, we must apply § 1983 of Title 42 

of the United States Code as it exists today, that is, as thrice amended since its 

initial enactment in 1871. We must therefore account for any changes in the legal 

meaning of “person” that may have informed Congress’s decision to perpetuate 

that term across amended versions of § 1983. Indeed, the Supreme Court in 

Ngiraingas looked not only to the history of the 1871 Civil Rights Act but also to

“the successive enactments of [§ 1983], in context” -- and to changes to the 

definition of “person” in the Dictionary Act -- in order to interpret the word 

“person.” 495 U.S. at 189, 191 n.10.

Congress amended the text of § 1983 twice after the 1948 amendment to the 

Dictionary Act -- which made clear that “person” in “any Act of Congress” 

includes “associations” and “societies” in addition to “corporations,” “companies,”

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“firms,” “partnerships,” “joint stock companies,” and “individuals.” See 62 Stat. at 

859; 1 U.S.C. § 1. A congressional amendment in 1979 extended § 1983’s

coverage to injuries inflicted by those acting under the color of District of 

Columbia law; a 1996 amendment limited the availability of injunctive relief 

against judicial defendants. See Act of December 29, 1979, Pub. L. No. 96-170, 

93 Stat. 1284 (1979); Federal Courts Improvement Act of 1996, Pub. L. No. 104-

317, 110 Stat. 3847 (1996). In neither re-enacted version of § 1983 did Congress

narrow the definition of “person” in light of the intervening clarification in the 

Dictionary Act that associations are “persons” as that term is used in federal 

statutes. Cf. United States v. Bryant, 996 F.3d 1243, 1258 (11th Cir. 2021)

(“[W]hen interpreting statutes, what Congress chose not to change can be as 

important as what it chose to change.”). 

Similarly, Congress enacted both of these amendments after the 1937 

promulgation of Federal Rule of Civil Procedure 17(b), which provided “that a 

partnership or other unincorporated association, which has no such capacity by the 

law of such state, may sue or be sued in its common name for the purpose of 

enforcing for or against it a substantive right existing under the Constitution or law 

of the United States.” Parties, 1937 Rep. Advisory Comm. on Civ. Rules 47 

(1937); see also Fed. R. Civ. P. 17(b)(3) (the Rule’s current text remains nearly 

identical to that of the original version); Centro De La Comunidad Hispana De 

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Locust Valley v. Town of Oyster Bay, 954 F. Supp. 2d 127, 137 (E.D.N.Y. 2013) 

(relying on Rule 17(b)(3) to conclude that “an unincorporated association[] ha[d] 

legal capacity to bring [a § 1983] suit because all of its claims allege[d] violations 

of the United States Constitution”), aff’d, 868 F.3d 104 (2d Cir. 2017), and aff’d, 

705 F. App’x 10 (2d Cir. 2017); Playboy Enters., Inc. v. Pub. Serv. Comm’n of 

P.R., 698 F. Supp. 401, 413–14 (D.P.R. 1988) (similar analysis regarding the 

unincorporated Puerto Rico Cable Television association), aff’d as modified on 

other grounds, 906 F.2d 25 (1st Cir. 1990). 

And perhaps most significantly, the Supreme Court held in 1974 that an 

unincorporated union could “sue under 42 U.S.C. § 1983 as [a] person[] deprived 

of [its] rights secured by the Constitution and laws.” Allee v. Medrano, 416 U.S. 

802, 819 n.13 (1974). Thus, by the time of the 1979 and 1996 amendments to § 

1983, federal law made it quite clear that unincorporated associations were 

“persons” that could sue to enforce constitutional rights under § 1983. It is telling 

that against this backdrop, Congress did not choose to restrict the scope of the term 

“person” when it re-enacted amended versions of § 1983. See Pollitzer v. 

Gebhardt, 860 F.3d 1334, 1340 (11th Cir. 2017) (“Congress is presumed to be 

aware of an administrative or judicial interpretation of a statute and to adopt that 

interpretation when it re-enacts a statute without change.”) (emphasis added)

(quoting Lorillard v. Pons, 434 U.S. 575, 580 (1978)); Fajardo v. U.S. Att’y Gen., 

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659 F.3d 1303, 1310 (11th Cir. 2011) (“Where words are employed in a statute 

which had at the time a well-known meaning at common law or in the law of this 

country they are presumed to have been used in that sense unless the context 

compels to the contrary.”) (emphasis added) (quoting Lorillard, 434 U.S. at 583); 

Scalia & Garner, supra, at 322 (“The clearest application of the prior-construction 

canon occurs with reenactments: If a word or phrase has been authoritatively 

interpreted by the highest court in a jurisdiction . . . a later version of that act 

perpetuating the wording is presumed to carry forward that interpretation.”). 

Whatever “person” meant in 1871, its meaning included unincorporated 

associations by the time Congress “perpetuated” the word “person” in new 

versions of § 1983 in 1979 and 1996. See Scalia & Garner, supra, at 322.

Even setting these textual and historical considerations aside, Allee suggests

that an unincorporated entity like FLFNB, just like the unincorporated union in that 

case, is a “person” for § 1983 purposes. In Allee, individual organizers and a

union brought a § 1983 action against Texas officials on behalf of a class of union 

members, alleging that law enforcement had threatened and harassed them for 

engaging in union organizing activities, including by bringing criminal charges in 

bad faith. 416 U.S. at 804–09. A question arose as to whether there were pending 

state prosecutions against any of the plaintiffs -- if not, the plaintiffs’ request for 

injunctive relief would be partially moot. Id. at 818. The Supreme Court 

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instructed that on remand, if there were indeed pending prosecutions against the 

unnamed class members, the district court “must find that the class was properly 

represented” by the named plaintiffs in part because the named-plaintiff union was 

a “person[]” that could sue under § 1983 and that had standing to complain of the 

unlawful intimidation of its members. Id. at 819 n.13; see also id. at 831 (Burger, 

C.J., concurring in the result in part and dissenting in part) (acknowledging that the 

union plaintiff was unincorporated). 

In holding that “[u]nions may sue under 42 U.S.C. § 1983 as persons,” the 

Court in Allee did not rest on any distinctive features of unions or suggest that 

unions should be treated differently than any other kinds of unincorporated 

associations. Id. at 819 n.13. The Court might have relied on, but did not so much 

as mention, characteristics surrounding unions that other types of unincorporated 

associations may not share, such as their affirmative recognition and privileges in 

federal and state law. See Coronado Coal Co., 259 U.S. at 385–90. Instead, the 

Court concluded, without limiting its reasoning, that unincorporated unions were § 

1983 “persons.” The understanding of the meaning of the term “person” at the 

time the Civil Rights Act was passed in 1871 presented no obstacle to the result the 

Supreme Court reached in Allee. A union was neither an individual nor a 

corporation, yet the Supreme Court held that it still fell within the ambit of the 

term “other person.” 

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In keeping with a broad reading of Allee, most federal courts to have 

confronted the question of whether a non-union unincorporated association is a 

“person” under § 1983 have answered in the affirmative. In Barrett v. United 

States, the Second Circuit reasoned that an estate administratrix could bring a § 

1983 suit on behalf of the estate beneficiaries because they were a group of 

individuals “associated for a special purpose.” 689 F.2d 324, 333 (2d Cir. 1982) 

(“Unions and unincorporated associations have also been found to possess standing 

to assert a § 1983 claim.”). The Second Circuit weighed in again in Jund v. Town 

of Hempstead, this time to hold that unincorporated local Republican committees 

were proper § 1983 defendants. 941 F.2d 1271, 1279–80 (2d Cir. 1991). And at 

least two district courts have adopted this reading. In Gay-Straight All. of 

Okeechobee High Sch. v. Sch. Bd. of Okeechobee Cnty., a court in the Southern 

District of Florida held that an “unincorporated, voluntary association of students” 

at a Florida high school was a § 1983 “person.” 477 F. Supp. 2d 1246, 1248, 

1249–51 (S.D. Fla. 2007). A court in the Northern District of Illinois similarly 

held that an unincorporated organization representing the interests of a public 

housing development could bring a § 1983 suit and noted that “[u]nincorporated 

organizations have been found to be ‘persons’ entitled to bring suit under § 1983.” 

Cabrini-Green Loc. Advisory Council v. Chi. Hous. Auth., No. 04 C 3792, 2005 

WL 61467, at *3 (N.D. Ill. Jan. 10, 2005). 

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Moreover, there is a longstanding and robust practice of treating 

unincorporated associations as proper § 1983 plaintiffs as a matter of course. The 

Eleventh Circuit and an array of other courts have evaluated § 1983 claims brought 

by all manner of unincorporated associations seeking to vindicate a diverse array 

of constitutional interests -- including the Orlando and Santa Monica local Food 

Not Bombs chapters -- without even hinting that they lacked a § 1983 cause of 

action. See, e.g., First Vagabonds Church of God v. City of Orlando, 638 F.3d

756, 758 (11th Cir. 2011) (en banc) (Orlando Food Not Bombs); Santa Monica 

Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1031 (9th Cir. 2006)

(Santa Monica Food Not Bombs); Rounds v. Or. State Bd. of Higher Educ., 166 

F.3d 1032, 1034 (9th Cir. 1999) (Students for Legal government, an 

unincorporated association of University of Oregon students); Citizens Against 

Tax Waste v. Westerville City Sch., 985 F.2d 255, 256–57 (6th Cir. 1993) 

(Citizens Against Tax Waste, an “unincorporated association of property owners in 

the Westerville City School District”); Marcavage v. City of New York, 918 F. 

Supp. 2d 266, 267 (S.D.N.Y. 2013) (Repent America, an unincorporated 

association dedicated to Christian evangelism); Occupy Fresno v. Cnty. of Fresno, 

835 F. Supp. 2d 849, 853 (E.D. Cal. 2011) (Occupy Fresno, an unincorporated 

association of individuals who wished to assemble in a park); Good News Emp. 

Ass’n v. Hicks, No. C-03-3542 VRW, 2005 WL 351743, at *1 (N.D. Cal. Feb. 14, 

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2005), aff’d, 223 F. App’x 734 (9th Cir. 2007) (unincorporated association 

organized to promote a faith-based concept of “Natural Family and Marriage”); 

Nat’l Ass’n of Alzheimer’s Victims & Friends v. Pa. Dep’t of Pub. Welfare, No. 

CIV.A. 88-2426, 1988 WL 29338, at *1 (E.D. Pa. Mar. 23, 1988) (National 

Association of Alzheimer’s Victims & Friends, an “unincorporated association 

founded for the purpose of providing a mutual care and support group for persons 

suffering from Alzheimer’s disease and their families and concerned friends”); 

Republican Coll. Council of Pa. v. Winner, 357 F. Supp. 739, 740 (E.D. Pa. 1973) 

(Republican College Council of Pennsylvania). The same is true of a historically 

significant set of § 1983 plaintiffs, the unincorporated local chapters of the 

NAACP. See N.A.A.C.P. v. Brackett, 130 F. App’x 648 (4th Cir. 2005). 

This body of practice is not a body of holdings and, of course, cannot alter 

the meaning of the word “person” as used in the statute. But when combined with

the ordinary meaning of the text, Allee, persuasive interpretations from other 

courts, and the body of law informing Congress’s amendments to § 1983 -- all of 

which indicate that unincorporated associations are “persons” -- it at least 

underscores the need for compelling evidence before we adopt the City’s contrary 

interpretation. See Nasrallah v. Barr, 140 S. Ct. 1683, 1697–98, (2020) (Thomas, 

J., dissenting) (protesting that when “presented with two competing statutory 

interpretations[,] one of which ma[de] sense of” the statute “without upending 

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settled practice, and one of which significantly undermine[d the statute] by 

removing a vast swath of claims from its reach,” the Supreme Court majority 

should have “justif[ied]” its choice of the latter interpretation and “candidly 

confront[ed] its implications”); Fowler v. U.S. Parole Comm’n, 94 F.3d 835, 840 

(3d Cir. 1996) (While “a practice bottomed upon an erroneous interpretation of the 

law is not legitimized merely by repetition,” “general acceptance of a practice must 

be considered in any reasoned [statutory interpretation] analysis.”). 

The Tenth Circuit, which holds that unincorporated associations cannot sue 

under § 1983, stands alone against the trend of treating unincorporated associations 

as “persons.” See Lippoldt, 468 F.3d at 1216 (holding that Operation Save 

America, an unincorporated association devoted to anti-abortion advocacy, was not 

a “person” within the meaning of § 1983); see also Tate v. Univ. Med. Ctr. of So. 

Nev., No. 2:09-CV-01748-LDG (NJK), 2013 WL 1249590, at *11 (D. Nev. Mar. 

26, 2013) (stating, in a single sentence devoid of analysis, that an unincorporated 

association was not a “person” subject to suit under § 1983), rev’d on other 

grounds, 617 F. App’x 724 (9th Cir. 2015). The Tenth Circuit’s otherwise 

thorough discussion of the legislative history of the 1871 Civil Rights Act, the 

background law in 1871, and the 1871 Dictionary Act did not account for the fact 

that Congress re-enacted the word “person” in § 1983 twice after intervening 

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developments in federal law clarified that unincorporated associations were 

“persons.” 

At bottom, in enacting § 1983, Congress “intended to give a broad remedy 

for violations of federally protected civil rights.” Monell, 436 U.S. at 685. And

the Supreme Court has instructed us that “Congress intended § [1983] to be 

broadly construed.” Id. at 686. “[A]ny plan to restrict the scope of § 1983 comes 

with a heavy burden of justification -- a burden that is both constitutional and 

historical.” Harry A. Blackmun, Section 1983 and Federal Protection of Individual 

Rights — Will the Statute Remain Alive or Fade Away?, 60 N.Y.U. L. Rev. 1, 28 

(1985). Absent some indication from the Supreme Court that unincorporated 

associations are not “persons,” we decline the City’s invitation to upset 

longstanding practice recognizing that unincorporated associations are “persons” 

that may sue under § 1983. See id. at 3 (warning “that any restriction of what has 

become a major symbol of federal protection of basic rights [should] not be made 

in irresponsible haste” and that absent strong historical evidence, the scope and 

“underlying principles of § 1983 liability should be secure”). We hold that FLFNB 

is a person that may bring suit under § 1983. 

B. 

The second threshold question, also prefatory to an analysis of the merits, 

concerns the principle of mootness. The Plaintiffs seek declaratory, injunctive, and 

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damages relief as to both the Ordinance and the Park Rule. But well after the 

commencement of this litigation, the City repealed the challenged Ordinance. The 

Park Rule remains in effect, so the Ordinance’s repeal does not affect the

Plaintiffs’ claims for declaratory, injunctive, and damages relief concerning the 

Park Rule. Likewise, the Plaintiffs’ claims for monetary damages arising out of 

the application of the Ordinance while it was still on the books remain viable 

notwithstanding its subsequent repeal. See, e.g., Checker Cab Operators, Inc. v. 

Miami-Dade Cnty., 899 F.3d 908, 916 (11th Cir. 2018) (“Although a case will 

normally become moot when a subsequent [law] brings the existing controversy to 

an end, when the plaintiff has requested damages, those claims are not moot.”) 

(alteration in original) (citation omitted). However, the repeal mooted the 

Plaintiffs’ claims for declaratory and injunctive relief against the Ordinance. 

“Plainly, if a suit is moot, it cannot present an Article III case or controversy 

and the federal courts lack subject matter jurisdiction to entertain it.” Coral 

Springs, 371 F.3d at 1328. “Generally, a challenge to the constitutionality of a 

statute is mooted by repeal of the statute,” but an exception “applies if there is a 

substantial likelihood that the challenged statutory language will be reenacted.” Id.

at 1329. The Plaintiffs have failed to meet their burden of proving that this 

exception applies. See Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 

868 F.3d 1248, 1256 (11th Cir. 2017) (en banc) (“[O]nce the repeal of an 

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ordinance has caused our jurisdiction to be questioned, [the plaintiff] bears the 

burden of presenting affirmative evidence that its challenge is no longer moot.”) 

(alteration in original) (citation omitted).

“The key inquiry. . . is whether the evidence leads us to a reasonable 

expectation that the City will reverse course and reenact the allegedly offensive 

portion of its Code should this Court” conclude the case is moot. Id.; Coral 

Springs, 371 F.3d at 1331 (“Whether the repeal of a law will lead to a finding that 

the challenge to the law is moot depends most significantly on whether the court is 

sufficiently convinced that the repealed law will not be brought back.”). The 

Plaintiffs must present “concrete evidence,” rather than “mere speculation,” that 

the City will return to its old ways. Nat’l Advert. Co. v. City of Miami, 402 F.3d 

1329, 1334 (11th Cir. 2005). 

“[T]hree broad factors” guide our inquiry: (1) “whether the change in 

conduct resulted from substantial deliberation or is merely an attempt to 

manipulate our jurisdiction”; (2) “whether the government’s decision to terminate 

the challenged conduct was unambiguous,” including “whether the actions that 

have been taken to allegedly moot the case reflect a rejection of the challenged 

conduct that is both permanent and complete”; and (3) “whether the government 

has consistently maintained its commitment to the new policy or legislative 

scheme.” Flanigan’s Enters., 868 F.3d at 1257. These factors are neither exclusive 

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nor dispositive; rather, the question is whether “the totality of [the] circumstances 

persuades the court that there is no reasonable expectation that the government 

entity will reenact the challenged legislation.” Id.

The first factor does not help the Plaintiffs. The City repealed the ordinance 

through its normal legislative process, rather than in “secrecy” or “behind closed 

doors.” Id. at 1260. The Commission considered the repeal at a public meeting, 

and the Plaintiffs do not provide any reason to believe that “the procedures used by 

the City to repeal the Ordinance [do not] reflect the same level of deliberation we 

would expect for any other change in policy.” Id. Moreover, the timing of the 

repeal does not provide reason to “doubt the City’s sincerity.” Coral Springs, 371 

F.3d at 1320. Notably, the City repealed the Ordinance after the district court had 

granted final judgment in its favor in this case and before this Court had reversed 

that judgment in FLFNB I. This factor weighs heavily against a conclusion that 

the City will re-enact the Ordinance. 

So does the second factor. The City enforced the Ordinance only for a brief 

period (about one month) after its October 22, 2014 enactment; the City did not 

enforce the Ordinance between December 2, 2014 and its repeal on November 7,

2017. To be sure, this cessation of enforcement was not the result of an 

independent change of heart; rather, on December 2, a state court stayed 

enforcement in connection with a separate lawsuit challenging the Ordinance under 

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Florida’s Religious Freedom Restoration Act. And the City has not unequivocally 

assured that it will not re-enact the Ordinance. See Flanigan’s, 868 F.3d at 1262 

(city council had passed a resolution disavowing any intent to re-enact the 

challenged ordinance or anything similar). Still, all the Plaintiffs can offer on the 

second factor are inferences drawn from the timing of the City’s enforcement 

decisions in relation to litigation developments. And these inferences are hardly

ironclad: the City voluntarily continued its policy of non-enforcement even after 

the expiration of the state-court stay on January 1, 2015. 

At first blush, the Plaintiffs do better on the third factor, for the Park Rule 

still remains in effect and implicates the gravamen of Plaintiffs’ complaint by 

preventing them from carrying out their expressive food sharing in a public park. 

When “a superseding statute leaves objectionable features of the prior law 

substantially undisturbed, the case is not moot.” Naturist Soc’y, Inc. v. Fillyaw, 

958 F.2d 1515, 1520 (11th Cir. 1992); cf. Ne. Fla. Chapter of Associated Gen. 

Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993) (The 

enactment of a new statute similar to the one repealed saves a case from mootness 

so long as the new statute implicates “the gravamen of [the original] complaint,” 

even if the new statute “differs in certain respects from the old one” or 

“disadvantage[s] [the plaintiffs] to a lesser degree than the old one.”). Even so, the 

City stopped enforcing the Park Rule against FLFNB’s demonstrations at the same 

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time it stopped enforcing the Ordinance (on December 2, 2014). In practice, the 

City’s commitment to its repeal of the Ordinance and retreat from the policies 

behind it has not wavered. 

To sum it all up, notwithstanding the City’s failure to repeal the Park Rule or 

to unequivocally “disavow[] any intent to reenact” the Ordinance, Flanigan’s, 868 

F.3d at 1263, the Ordinance’s regulation of outdoor food distribution is a thing of 

the past. The Plaintiffs have not offered “concrete evidence” that the City might

re-enact the Ordinance. Nat’l Advert. Co., 402 F.3d at 1334. Their case depends 

almost entirely on conjecture based on the timing of the City’s actions and its 

commitment to a related rule. But the timing at best provides a weak reed to 

establish an intent to re-enact and at worst undermines the Plaintiffs’ case: the City 

repealed the Ordinance after the district court initially upheld it. This sequence 

does not betray a strategic repeal to avoid adverse litigation developments. We 

lack jurisdiction to address the difficult constitutional questions that attend the 

Plaintiffs’ requests for declaratory and injunctive relief against the Ordinance. 

These claims are moot. 

C. 

The third, and last, of the threshold issues concerns Article III standing. The 

City argues that all of the Plaintiffs lack standing to assert damages claims based 

on the Ordinance and the Park Rule because these regulations, by the City’s 

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account, were not enforced against any of the Plaintiffs. According to the City, the 

Plaintiffs cannot prove a concrete injury connected to the Ordinance or the Park 

Rule. Like the district court before us, we remain unpersuaded. Both the 

Individual Plaintiffs and FLFNB have standing to bring damages claims against the 

City based on its enforcement of the Ordinance and the Park Rule. They also have 

standing to bring claims for declaratory and injunctive relief against the Park Rule. 

It is by now almost axiomatic that in order to establish constitutional

standing, a party plaintiff must show three things:

First, the plaintiff must have suffered an injury in fact -- an invasion of 

a legally protected interest which is (a) concrete and particularized and 

(b) actual or imminent, not conjectural or hypothetical. Second, there 

must be a causal connection between the injury and the conduct 

complained of -- the injury has to be fairly traceable to the challenged 

action of the defendant, and not the result of the independent action of 

some third party not before the court. Third, it must be likely, as 

opposed to merely speculative, that the injury will be redressed by a 

favorable decision. 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations and 

quotation marks omitted and alterations accepted); see also Bischoff v. Osceola 

Cnty., 222 F.3d 874, 883 (11th Cir. 2000). Standing for injunctive relief requires 

proof of a threat of future injury. Houston v. Marod Supermarkets, Inc., 733 F.3d 

1323, 1329 (11th Cir. 2013). If there is a genuine issue of material fact as to 

whether the Plaintiffs have standing, summary judgment against them on standing 

grounds is inappropriate. See Bischoff, 222 F.3d at 884. 

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1. Individual Plaintiffs. The City applied the Ordinance and the Park Rule 

to the Individual Plaintiffs insofar as they each participated in a November 7, 2014

FLFNB food-sharing event in Stranahan Park that the police broke up under their

authority drawn from the Ordinance and the Park Rule. Plaintiff Nathan Pim, 

testifying on behalf of FLFNB, explained that the police “stopped” the event 

“short.” [DE 49-1 at 41] We have already concluded that the Individual Plaintiffs 

were engaging in constitutionally protected expression, and the City forced them to 

stop and disperse. Undeniably, the Ordinance and the Park Rule injured them by 

directly interfering with and barring their protected expression. “[E]very violation 

[of a right] imports damage.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796–97, 

799 (2021) (citation omitted) (considering it beyond dispute that a college student 

suffered an injury in fact when he complied with a college official’s order to stop 

speaking and handing out religious literature on campus); cf. Roman Cath. Diocese 

of Brooklyn v. Cuomo, 592 U.S. ----, 141 S. Ct. 63, 67–68 (2020) (per curiam 

order granting application for injunctive relief) (those who wished to attend 

religious services, an exercise of their First Amendment freedoms, would suffer 

irreparable injury if barred from attending by state executive order); Elrod v. 

Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for 

even minimal periods of time, unquestionably constitutes irreparable injury.”). 

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In this way, the Individual Plaintiffs sustained an injury in fact sufficient to 

confer standing that does not depend on the arrests of their FLFNB colleagues at 

the same demonstrations. What’s more, those arrests provide an additional basis 

for standing, even though the Individual Plaintiffs were not personally arrested or 

cited. “[S]tanding exists at the summary judgment stage when the plaintiff has 

submitted evidence indicating ‘an intention to engage in a course of conduct 

arguably affected with a constitutional interest, but proscribed by a statute, and 

there exists a credible threat of prosecution.’” Bischoff, 222 F.3d at 884 (quoting 

Wilson v. State Bar of Ga., 132 F.3d 1422, 1428 (11th Cir. 1998)); see also Susan 

B. Anthony List v. Driehaus, 573 U.S. 149, 158–59 (2014). 

Each Individual Plaintiff has declared under penalty of perjury that he or she 

will continue to participate in FLFNB’s protected food-sharing demonstrations in 

Stranahan Park, and there is no dispute that this conduct is arguably proscribed by 

the Park Rule (and was proscribed by the Ordinance when it was in effect). Of 

course, the threat of prosecution must be “genuine,” not “imaginary” or 

“speculative,” Leverett v. City of Pinellas Park, 775 F.2d 1536, 1538 (11th Cir. 

1985), but the Individual Plaintiffs easily meet this requirement. Each directly 

witnessed the police arrest and/or cite their co-demonstrators or others under the 

Ordinance and the Park Rule. Citations issued to the Individual Plaintiffs’ fellow 

demonstrators referenced both the Ordinance and the Park Rule. These arrests and 

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citations of the Individual Plaintiffs’ “companion[s]” render the threat of 

enforcement “non-chimerical.” Susan B. Anthony List, 573 U.S. at 159 

(describing Steffel v. Thompson, 415 U.S. 452, 459 (1974)); cf. Bischoff, 222 F.3d 

at 884–85 (plaintiffs who were threatened with arrest and whose co-demonstrators

were actually arrested suffered injury in fact). 

2. FLFNB. FLFNB does not claim that it has associational standing to sue 

on behalf of its members; rather it claims “standing in its own right.” Havens 

Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982). An advocacy organization 

like FLFNB suffers injury in fact when the defendant’s conduct “perceptibly 

impair[s] [the organization’s] ability” to carry out its mission, including by causing 

“drain on the organization’s resources.” Id. at 379; see also Fla. State Conf. of 

N.A.A.C.P. v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008) (“[A] n 

organization has standing to sue on its own behalf if the defendant’s illegal acts 

impair its ability to engage in its projects by forcing the organization to divert 

resources to counteract those illegal acts.”). 

It is undeniable, as the district court found, that the City’s enforcement of the 

Ordinance and the Park Rule “impair[ed]” FLFNB’s “ability to engage in its 

projects” -- food-sharing demonstrations to criticize society’s allocation of 

resources between food and war -- in a number of ways. Most directly, the police 

shut down an FLFNB food-sharing demonstration on November 7, 2014. This 

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blocked FLFNB from holding its traditional post-meal organizational meeting in 

Stranahan Park and cut short an exercise of its chief means of advocacy. See

Havens, 455 U.S. at 379 (plaintiff organization suffered injury where challenged 

practices impaired its ability “to provide counseling and referral services for lowand-moderate-income homeseekers”). Moreover, the challenged regulations 

caused FLFNB to expend resources in the form of volunteer time, including efforts 

to collect bail money and organize legal representation for its members who were

arrested under the Ordinance and the Park Rule. The threat of arrest also has 

practically hindered would-be volunteers from participating in FLFNB 

demonstrations. Thus, for example, FLFNB had to stop accepting high school 

volunteers because it did not want to risk subjecting them to criminal liability. 

These injuries will continue, because FLFNB continues to hold demonstrations 

under the threat of Park Rule enforcement. 

FLFNB volunteers who would have normally worked on preparing for foodsharing demonstrations had to divert their energies to advocacy activities such as 

attending City meetings and organizing protests against the Ordinance, as well as 

arranging for transportation and supplies for these events. FLFNB’s Rule 30(b)(6) 

representative unambiguously testified that this “drew away time and resources 

from free time we would be spending on preparing for . . . feedings.” See Fla. 

State Conf. of N.A.A.C.P., 522 F.3d at 1165–66 (organization suffered injury in 

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fact from anticipated diversion of “personnel and time to educating volunteers and 

voters on compliance with” a challenged law). In the face of these injuries, the fact 

that FLFNB has continued to hold food sharings in Stranahan Park since the 

enactment of the Ordinance does not deprive it of standing. 

Nor, as the City suggests, does the fact that FLFNB is an informal 

organization with no formative documents, formal leadership offices, or written 

proof of membership. The City has not offered any authority to suggest that an 

unincorporated association’s informal structure somehow renders it incapable of 

sustaining actual and concrete injury. To the contrary, unincorporated associations 

by their nature lack a charter and often lack formal organizational structures. See

S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 931 (9th Cir. 2014) (“[A]n 

‘unincorporated association’ is a ‘voluntary group of persons, without a charter, 

formed by mutual consent for the purpose of promoting a common objective.’”) 

(citation omitted). This does not block them from seeking redress for injuries they 

may sustain. See Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566, 1571 (11th 

Cir. 1991) (“Empire is an unincorporated association. As such, it has standing to 

allege . . . injuries suffered directly by the organization.”). On this record as a 

whole, FLFNB’s relaxed organizational style does not denude it of standing. 

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III.

A. 

To take stock so far, the Plaintiffs have standing to bring the following 

justiciable claims: for declaratory and injunctive relief against the Park Rule, and 

for compensatory damages with respect to both the Ordinance and the Park Rule. 

Our next step would normally be to examine the merits of the Plaintiffs’ arguments 

that the Ordinance and the Park Rule are unconstitutional. But there is a twist here.

As we see it, we need not, and therefore do not, pass upon the validity of the 

Ordinance. The Ordinance was repealed on November 7, 2017. And the validity, 

vel non, of the Ordinance has no bearing on the Plaintiffs’ claims for past damages. 

This is because the Plaintiffs’ damages claims with respect to the Ordinance -- the 

only Ordinance claims left -- are coextensive with their damages claims arising out 

of the enforcement of the Park Rule. The City enforced the Ordinance and the 

Park Rule as one, so reviewing the constitutionality of the Park Rule is all we must 

do in order to determine whether the Plaintiffs may be entitled to damages based 

on the City’s enforcement actions. Because, as we will explain, the Park Rule 

violates the First Amendment as applied to the Plaintiffs, a ruling on the Ordinance 

provides no further benefit to the Plaintiffs. Deciding the constitutionality of the 

repealed Ordinance would therefore be an unnecessary exercise of our authority to 

interpret the Constitution. “Generally, we don’t answer constitutional questions 

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that don’t need to be answered.” Burns v. Town of Palm Beach, 999 F.3d 1317,

1348 (11th Cir. 2021); see Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 

U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial 

restraint requires that courts avoid reaching constitutional questions in advance of 

the necessity of deciding them.”).

To explain, the core of the Plaintiffs’ theory of damages is that they were 

forced to exercise their First Amendment rights under the fear of City sanction. 

The Ordinance and the Park Rule operated together to inflict this fear, so reserving 

judgment on the Ordinance will not affect the Plaintiffs’ pursuit of compensatory 

damages. The Plaintiffs explain that they “fear future harassment, arrest and 

prosecution for continuing to engage in their weekly demonstrations at Stranahan 

Park.” They also complain of associated “impairment of reputation, emotional 

distress, and loss of protected constitutional freedoms.” Thus, for example, 

plaintiff William Toole declared that “[i]f the City resumes enforcement of the 

Ordinance and Park Rule, as I anticipate it will, I and other members of [FLFNB]

will continue to face the possibility of receiving criminal citations for engaging in 

political expression, citations carrying a potential penalty of a $500.00 fine, 60 

days in jail, or a combination of the two.” As an organization, plaintiff FLFNB 

suffered similar damages because “people who want to associate with [FLFNB] for 

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purposes of engaging in [its] weekly political demonstrations do so by assuming a 

risk of citation or arrest.” 

A violation of the Ordinance and a violation of the Park Rule each carry the 

same penalty. The City could impose the specific penalties Toole and the other 

plaintiffs fear -- a $500.00 fine and 60 days in jail -- either for a violation of the 

Ordinance (when it was in effect) or for a violation of the Park Rule. Those 

convicted of violating the Ordinance “shall . . . be punished as provided in Section 

1-6 . . . of the Code.” § 47-34.2(C). Section 1-6 of the Code provides for a $500 

fine or 60-day imprisonment punishment. City Code § 1-6(c). 

Meanwhile, Park Rule 2.2 prohibits social services in City parks without the 

City’s permission. Section 11.0 of the Park Rules deals with enforcement. 

Specifically, § 11.3, entitled “Trespass,” says that “[a]ny person or group found in 

violation of [any Park Rule] shall be ordered to leave all [City parks] for a 

minimum 24-hour period. Any person who fails to leave all City [parks] at the 

time requested may be arrested and prosecuted for trespassing or prosecuted under 

other existing ordinances.” This directs us to the “Trespassing” section of the City 

Code, which incorporates the punishment found in City Code § 1-6, the same 

penalty section incorporated into the Ordinance: “[v]iolators of this section shall be 

deemed trespassers and subject to punishment as provided in section 1-6 of this 

Code.” City Code § 16-26 (Trespassing). Just as it does for violations of the

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outdoor food distribution Ordinance, Section 1-6 provides for a fine up to $500 or 

up to 60 days in jail for Park Rule violations. City Code § 1-6(c). This identity in 

the available sanction makes sense, because the City enacted the Ordinance at least 

in part in an effort to bring itself into compliance with the 2000 state-court 

injunction against the Park Rule, “thereby permitting the resumption of 

enforcement of the Park Rule.” 

To support their fears of enforcement, the Plaintiffs identify five instances 

when the City arrested or cited fellow demonstrators in the Plaintiffs’ presence. 

The arrest documents for four of these demonstrators cite both the Ordinance and

the Park Rule. Thus, the Park Rule was an important element in most of the arrests 

that give rise to the Plaintiffs’ claimed damages, namely their fear of arrest and 

prosecution for engaging in protected expression. Indeed, on November 7, 2014, 

the same day as the initial arrests, the City’s Public Information Officer announced 

that the City would not allow food sharing in Stranahan Park even pursuant to the

conditions of the Ordinance “because social services activities are not allowed to 

be conducted in our parks per Rule 2.2 of the Parks and Recreation Rules and 

Regulations.” The City’s policy of policing food sharing in Stranahan Park -- the 

source of the Plaintiffs’ fear-based damages -- did not depend on the Ordinance. In 

the City’s own words, it arose alternatively, and independently, from the Park 

Rule. 

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It is true that the record does not indicate that the City ever brought any 

formal prosecutions under the Park Rule. But the City ultimately dropped all but 

one of the prosecutions it brought under the Ordinance (one individual pleaded no 

contest and served ten hours of community service), so the absence of filed Park 

Rule prosecutions does not drive a meaningful wedge between any damages the 

Plaintiffs sustained from the enforcement of the Park Rule and any monetary 

damages arising from the enforcement of the Ordinance. 

The Ordinance and the Park Rule operated in tandem and were enforced 

together against FLFNB’s demonstrations. The Plaintiffs acknowledge as much in 

their complaint: “[v]iolation of the Park Rule is a violation of the [O]rdinance 

because both require written permission from the City to share food in a City 

park.” The Plaintiffs’ alleged damages all stem from a single root: the City’s 

enforcement of the Park Rule.2

 Succeeding in their constitutional claim against the 

Park Rule would allow the Plaintiffs to proceed in their quest for damages based 

on this enforcement. Succeeding in their constitutional claim against the 

2 Some of the Plaintiffs’ filings also might be read to claim damages that do not relate to fears of 

arrest, but rather to costs incurred in protesting the enactment of the Ordinance. Even these 

alleged damages stem from the enforcement of the Park Rule. The materials for one of the City 

meetings FLFNB attended in protest explained that the City wished to pass the Ordinance so that 

it could resume enforcement of the Park Rule. So FLFNB allegedly expended resources to fight 

the Park Rule just as much as it did to fight the Ordinance. Of course, nothing in this opinion 

should be taken to suggest that the Plaintiffs will ultimately be able to prove compensatory 

damages or even the required causation. We observe only that the damages, as alleged, stem as 

much from the Park Rule as they do from the Ordinance. 

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Ordinance would not entitle them to anything more because their Ordinance-based 

damages theories invoke the same set of harms. Cf. Patterson v. Balsamico, 440 

F.3d 104, 113–14 (2d Cir. 2006) (nominal damages award was “contingent on the 

injuries suffered by [the plaintiff] rather than the number of statutes under which 

[the defendant was] liable”).

And as we shall see, it is not especially difficult to conclude that the Park 

Rule cannot pass First Amendment muster as applied to these Plaintiffs.3

 The 

Ordinance, however, presents a closer and more difficult question. On the one 

hand, it presents serious constitutional issues arising out of its arduous permitting 

process and a fee that can rise as high as $6,000 subject to City officials’ unfettered 

discretion. And, at least arguably, the Ordinance effectively bans the Plaintiffs’ 

expression in all City parks; the City did not take advantage of narrower potential 

alternatives such as allowing demonstrations in particular parks or permitting 

organizations to hold a limited number of annual food-sharing events as of right. 

See First Vagabonds Church of God, 638 F.3d at 758 (upholding similar Orlando 

ordinance with these features). On the other hand, the City has a substantial 

3 The Plaintiffs also purport to bring a facial challenge to the Park Rule. But they have not 

shown that the Park Rule prohibits a substantial amount of protected conduct, especially since

most of the social service park uses the Park Rule regulates will have no expressive component 

at all. See Doe v. Valencia Coll., 903 F.3d 1220, 1232 (11th Cir. 2018). Therefore, we follow 

FLFNB I and treat the Plaintiffs’ challenge only as an as-applied one. See 901 F.3d at 1241 

(“Whether food distribution or sharing can be expressive activity protected by the First

Amendment under particular circumstances is a question to be decided in an as-applied 

challenge.”) (citation omitted and alterations accepted). 

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interest in managing its park property, see id. at 761, and the Ordinance (unlike the 

Park Rule) provides clear and objective standards to guide the City’s permitting 

decisions, such as the requirement that each food sharing use must be at least 500 

feet away from any other. 

The resolution of these issues does not matter here. The Ordinance has been 

repealed, and its validity does not bear on the Plaintiffs’ quest for damages. Since 

the repeal of the Ordinance renders its validity a wholly academic question, in 

keeping with the judicial restraint principals of constitutional avoidance, we do not 

answer it.4

 See Lyng, 485 U.S. at 446 (lower courts should have answered a 

constitutional question only if “a decision on that question could have entitled [the 

plaintiffs] to relief beyond that to which they were entitled on their statutory 

claims”); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (courts “will 

not pass upon a constitutional question although properly presented by the record, 

if there is also present some other ground upon which the case may be disposed 

of”); Boss Cap., Inc. v. City of Casselberry, 187 F.3d 1251, 1254 (11th Cir. 1999)

(“[I]t is our custom not to decide difficult constitutional questions unless we 

must.”), abrogated on other grounds by City of Littleton v. Z.J. Gifts D-4, L.L.C., 

541 U.S. 774 (2004). 

4 For similar reasons, we do not reach the Plaintiffs’ alternative theories for why the Park Rule is

unconstitutional, namely their expressive association, vagueness, and prior restraint theories. 

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B. 

Finally, we come to the merits of the Plaintiffs’ as-applied challenge to the 

Park Rule. Our review of the district court’s summary judgment holding that the 

Park Rule was constitutional is de novo. FLFNB I, 901 F.3d at 1239. We draw all 

reasonable inferences in the light most favorable to the Plaintiffs, the non-moving 

parties. Id. 

But first, we pause to clarify what is not up for debate in this appeal. In 

FLFNB I, a panel of this Court held that FLFNB’s food-sharing demonstrations in 

Stranahan Park are expressive conduct protected by the First Amendment. Id. at 

1245. This holding binds us under both the law of the case doctrine, see Rath v. 

Marcoski, 898 F.3d 1306, 1312 (11th Cir. 2018), and our Court’s prior precedent 

rule, Andrews v. Biggers, 996 F.3d 1235, 1236 (11th Cir. 2021). The sole 

remaining question for us, then, is whether the Park Rule’s regulation of this 

protected conduct passes First Amendment scrutiny. 

To answer this question, we must first decide whether the Park Rule is 

content neutral or content based, for a content-neutral regulation of expressive 

conduct is subject to intermediate scrutiny, while a regulation based on the content 

of the expression must withstand the additional rigors of strict scrutiny. See Texas 

v. Johnson, 491 U.S. 397, 403–04 (1989); Burk v. Augusta-Richmond Cnty., 365 

F.3d 1247, 1255 (11th Cir. 2004). As we explain, the Park Rule is content neutral. 

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So, we only apply intermediate scrutiny. Specifically, we apply the United States 

v. O’Brien, 391 U.S. 367 (1968), test for content-neutral regulations of expressive 

conduct and ask whether the Park Rule “is narrowly drawn to further a substantial 

governmental interest . . . unrelated to the suppression of free speech.” Clark v. 

Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984) (citing O’Brien, 391

U.S. at 377). 

Alternatively, we evaluate the Park Rule as a time, place, and manner 

restriction on expressive conduct. This sort of law also must be “narrowly tailored 

to serve a significant governmental interest” and “leave open ample alternative 

channels for communication of the information.” Clark, 468 U.S. at 293. These 

standards substantially overlap and yield the same result in this case. Either way, 

the Park Rule violates the First Amendment as applied to the Plaintiffs’ foodsharing events. 

1. Content Neutrality. Johnson instructs us that a regulation of expressive 

conduct is content neutral if the justification for the regulation is unrelated to the 

suppression of free expression. 491 U.S. at 403. Even a content-neutral purpose, 

however, cannot save a regulation that “‘on its face’ draws distinctions based on 

the message a speaker conveys.” Reed v. Town of Gilbert, 576 U.S. 155, 163–64 

(2015). 

The Park Rule does not draw content-based distinctions on its face: 

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Parks shall be used for recreation and relaxation, ornament, light and 

air for the general public. Parks shall not be used for business or social 

service purposes unless authorized pursuant to a written agreement with 

City. As used herein, social services shall include, but not be limited 

to, the provision of food, clothing, shelter or medical care to persons in 

order to meet their physical needs.

The Rule applies not just to food sharing events but also to a host of other social 

services, including the provision of clothing, shelter, and medical care. These 

services usually do not involve expressive conduct. Even most social-service food 

sharing events will not be expressive. See FLFNB I, 901 F.3d at 1242 (holding 

that FLFNB’s food sharing was protected expressive conduct only after a close 

examination of the specific context surrounding the events). That the Park Rule 

regulates a range of activity, most of which has no expressive content at all, 

suggests its application does not vary based on any message conveyed. The Rule 

does not single out messages which relate to food or the importance of sharing 

food with the homeless. 

Instead, the Park Rule’s application to food sharing (and other services) 

turns on whether the services are provided “in order to meet [the recipients’] 

physical needs.” This distinction does not depend on the content of the message 

associated with any food sharing that happens to be expressive. The Park Rule (at 

least in the City’s view) applies to FLFNB’s sharing of low-cost food with the 

homeless in order to communicate a message about the societal allocation of 

resources between food and the military, but it would also apply to an organization 

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that shared low-cost food with the homeless in order to communicate that the 

City’s homeless shelters serve food that lacks vital nutrients. It would likewise 

apply to an organization that shared low-cost food with struggling veterans in order 

to emphasize the debt our society owes for their sacrifice, and so on. Indeed, it 

would apply to organizations that share food with those in need to communicate 

any number of messages. Simply put, the Rule does not “draw[] distinctions based 

on [any] message” food-sharers convey. Reed, 576 U.S. at 163. 

The Plaintiffs rely on Reed’s allusion to the possibility that some facial 

distinctions might be content based because they define “regulated speech by its 

function or purpose” to argue that the Park Rule’s social-service-purpose 

distinction is content based. Id. at 163–64. But we have characterized this 

language in Reed as “dicta.” Harbourside Place, LLC v. Town of Jupiter, 958 F.3d 

1308, 1319 (11th Cir. 2020). In any event, as just described, the purpose on which 

the regulatory definition turns -- sharing food to provide for physical welfare -- is 

not one that draws a distinction based on the content of any expression. See

Recycle for Change v. City of Oakland, 856 F.3d 666, 671 (9th Cir. 2017) 

(holding, after Reed, that a regulation that applied to unattended donation boxes 

that collected personal items “for the purpose of distributing, reusing, or recycling 

those items” did not turn on “communicative content”); Josephine Havlak 

Photographer, Inc. v. Vill. of Twin Oaks, 864 F.3d 905, 915 (8th Cir. 2017) 

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(regulation that applied to photography for commercial purposes, but not noncommercial purposes, was not content based under Reed). To be sure, it seems

likely that most expressive food sharings subject to the Park Rule’s regulation will

involve some sort of message related to the importance of sharing food with those 

in need. “But a facially neutral law does not become content based simply because 

it may disproportionately affect speech on certain topics.” McCullen v. Coakley, 

573 U.S. 464, 480 (2014).

Likewise, the City’s justifications for the Park Rule do not relate to content. 

“A regulation that serves purposes unrelated to the content of expression is deemed 

[content] neutral, even if it has an incidental effect on some speakers or messages 

but not others.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The 

City enacted the Park Rule, and the Ordinance designed to facilitate its 

enforcement, in order to address a series of problems associated with large group 

food events in public parks, including loitering and crowds, trash build-up, noise, 

and food safety issues, as well as to ensure that similar uses of public property did 

not concentrate in one area. Citizens had complained about some of these 

problems in connection with food-sharing events. In January 2014, the City 

Commission held a workshop on homelessness in the community where 

stakeholders debated public food distribution and related topics. More generally, 

the Ordinance states that its purpose is “to regulate social service facilities in order 

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to promote the health, safety, morals and general welfare of the residents of the 

City of Fort Lauderdale.” (This statement illuminates the Park Rule’s purpose as 

well, since the City enacted the Ordinance so that it could resume enforcement of 

the Park Rule.) 

These concerns, which boil down to an interest in maintaining public parks 

and other property in a pleasant, accessible condition, are not related to the 

suppression of the Plaintiffs’ (or any other party’s) expression, so they are content 

neutral. See First Vagabonds Church of God, 638 F.3d at 762 (“[T]he interest of 

the City in managing parks and spreading large group feedings to a larger number 

of [locations] is unrelated to the suppression of speech.”); see also McCullen, 573 

U.S. at 480–81 (public safety, the need to protect security, and regulation of 

congestion are content-neutral concerns); Ward, 491 U.S. at 797 (“The city enjoys 

a substantial interest in ensuring the ability of its citizens to enjoy whatever 

benefits the city parks have to offer, from amplified music to silent meditation.”).

One could phrase the City’s motives in terms that are perhaps less flattering. 

The district court said the City was concerned “that food sharing as a social service 

attracts people who act in ways inimical to” keeping parks safe, clean and 

enjoyable; the Plaintiffs put a finer point on it and accuse the city of “deter[ring] 

homeless and hungry people from parks because of how they might act.” Fort 

Lauderdale’s elected officials seem to have decided that sharing food with large 

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groups of homeless people in public parks causes problems that make those parks 

less useful to the broader public. But even accepting these descriptions does not 

alter the First Amendment analysis, which at this stage asks only whether the 

City’s desire to prevent groups of homeless people from gathering in public parks

is a goal related to the content of the Plaintiffs’ or any other party’s expression. 

The First Amendment does not permit us to go further and comment upon whether 

this objective is virtuous public policy. We hold simply that the Park Rule is not

related to expressive conduct; it has nothing to do with the Plaintiffs’ critique of 

society’s allocation of scarce resources between welfare and defense spending. 

The Plaintiffs are wrong to say that the City’s concern with the behavior of 

the crowds that gather at FLFNB expressive food-sharing events is a justification 

related to “[l]isteners’ reaction to speech,” which they correctly point out would 

not be “a content-neutral basis for regulation.” Forsyth Cnty. v. Nationalist 

Movement, 505 U.S. 123, 134 (1992). Forsyth and related cases stand for the 

principle that a city may not regulate speech because it “cause[s] offense or 

ma[kes] listeners uncomfortable,” McCullen, 573 U.S. at 481, or because it might 

elicit a violent reaction or difficult-to-manage counterprotests, Forsyth Cnty., 505 

U.S. at 134. The City is concerned not that FLFNB’s expression will offend or 

cause violence, but that it will cause the gathering of crowds -- participants in the 

meals, rather than a bystander audience -- and associated logistical problems such 

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as the accumulation of trash. Addressing the practical problems crowds pose is a 

content-neutral concern. See McCullen, 573 U.S. at 481 (“Whether or not a single 

person reacts to abortion protestors’ chants or petitioners’ counseling, large crowds 

outside abortion clinics can still compromise public safety, impede access, and 

obstruct sidewalks.”); cf. Coal. for the Abolition of Marijuana Prohibition v. City 

of Atlanta, 219 F.3d 1301, 1317–18 (11th Cir. 2000) (a regulation that 

distinguished between events based on whether they would require municipal 

services to “accommodate . . . large public gatherings” was “justified without 

reference to the content of the regulated speech”) (emphasis omitted). 

2. Intermediate Scrutiny. Since the Park Rule is a content-neutral regulation 

of expressive conduct, it is subject only to intermediate scrutiny, not the more 

demanding requirements of strict scrutiny. Specifically, under United States v. 

O’Brien, the Park Rule may regulate the Plaintiffs’ expressive food sharing only so 

long as food sharing “itself may constitutionally be regulated” (no one has 

suggested it may not) and the Park Rule “is narrowly drawn to further a substantial 

governmental interest” that is “is unrelated to the suppression of free speech.” 

Clark, 468 U.S. at 294 (1984) (citing O’Brien, 391 U.S. 367, 377 (1968)). 

The City does have a “substantial interest in ensuring the ability of [its]

citizens to enjoy whatever benefits the city parks have to offer.” Ward, 491 U.S. at 

797. More specifically, the Park Rule seeks to further the City’s “substantial 

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interest in managing park property and spreading the burden of large group 

feedings throughout a greater area.” First Vagabonds Church of God, 638 F.3d at 

762. As we have explained, the regulations are concerned with avoiding 

concentration of similar park uses and with sanitation and other logistical problems 

that crowded food distribution events cause -- substantial government interests that 

are unrelated to the suppression of free speech. 

However, the Park Rule is not narrowly tailored to the City’s interest in park 

maintenance. Under intermediate scrutiny, the regulation “‘need not be the least 

restrictive or least inclusive means’ of serving the government’s interests.” 

McCullen, 573 U.S. at 486 (citation omitted). Rather, “the requirement of narrow 

tailoring is satisfied ‘so long as the regulation promotes a substantial governmental 

interest that would be achieved less effectively absent the regulation,’” and “the 

means chosen are not substantially broader than necessary to achieve the 

government’s interest.” Ward, 491 U.S. at 799–800 (citation omitted and 

alterations accepted). 

Fatally, the Park Rule imposes a permitting requirement without 

implementing any standards to guide City officials’ discretion over whether to 

grant a permit. The Rule bans social-service food sharings in City Parks “unless 

authorized pursuant to a written agreement with City.” That’s it. Under the terms 

of the Rule, a City official may deny a request for permission to hold an expressive 

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food sharing event in the Park because he disagrees with the demonstration’s 

message, because he doesn’t feel like completing the necessary paperwork, 

because he has a practice of rejecting all applications submitted on Tuesdays, or 

for no reason at all. In a word, the complete lack of any standards allows for

arbitrary enforcement and even for discrimination based on viewpoint. 

Generally, subjecting protected expression to an official’s “unbridled 

discretion” presents “too great” a “danger of censorship and of abridgment of our 

precious First Amendment freedoms.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 

546, 553 (1975). “[D]istaste for [such] censorship -- reflecting the natural distaste 

of a free people -- is deep-written in our law.” Id. It comes as no surprise, then, 

that “a long line” of Supreme Court decisions makes it abundantly clear that a 

regulation which “makes the peaceful enjoyment of freedoms which the 

Constitution guarantees contingent upon the uncontrolled will of an official -- as 

by requiring a permit or license which may be granted or withheld in the discretion 

of such official -- is an unconstitutional censorship or prior restraint upon the 

enjoyment of those freedoms.” Shuttlesworth v. City of Birmingham, 394 U.S. 

147, 151 (1969) (quoting Staub v. City of Baxley, 355 U.S. 313, 322 (1958)). 

The facts of Shuttlesworth illustrate the point. A Birmingham, Alabama 

ordinance empowered the city commission to deny parade permits whenever they 

thought it necessary for “public welfare,” “decency,” “morals, or “convenience.” 

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Id. at 148–50. In 1963, city officials used this ordinance to arrest and prosecute 

participants in a peaceful civil rights march held without a license, including Rev. 

Fred Shuttlesworth. Id. But the Supreme Court invalidated Shuttlesworth’s 

conviction. Id. at 159. The risk that the ambiguity in the licensing regime would

permit officials to target individuals, like Shuttlesworth, on the basis of their 

disfavored expression was too great for the First Amendment to bear. 

The reasoning of these prior restraint cases controls the as-applied narrow 

tailoring inquiry we conduct in this case: “[e]xcessive discretion over permitting 

decisions is constitutionally suspect because it creates the opportunity for 

undetectable censorship and signals a lack of narrow tailoring.” Burk, 365 F.3d at 

1256. The Park rule does not even supply malleable standards like those found in 

Shuttlesworth; it doesn’t provide any standards at all. As applied to the Plaintiffs’ 

protected expression, the Park Rule fails First Amendment scrutiny.

Moreover, the Park Rule’s sweeping grant of discretion to City permitting 

officials is not necessary to further the City’s interests in crowd control and park 

conservation. The government “may not regulate expression in such a manner that 

a substantial portion of the burden on speech does not serve to advance its goals.” 

McCullen, 573 U.S. at 486 (citations omitted). Of course, the mere availability of 

less restrictive alternatives will not cause a regulation to fail narrow tailoring 

scrutiny, and we may not “replace the City as the manager of its parks.” First 

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Vagabonds Church of God, 638 F.3d at 762 (citation omitted and alterations 

accepted). But an abundance of targeted alternatives may indicate that a regulation 

is broader than necessary. See McCullen, 573 U.S. at 490–94 (relying in part on 

available alternatives to conclude that a regulation of speech near abortion clinics 

burdened more speech than necessary). 

The Park Rule amounts to an outright ban on public food sharing in all of 

Fort Lauderdale’s parks; any exception is subject only to the standardless whims of 

City permitting officials. For a model of a narrower regulation targeting more or 

less the same interests, the City need only have looked 218 miles to the northwest. 

In First Vagabonds Church of God, we upheld an Orlando regulation that permitted 

public food distribution without a license in sixty-six parks. 638 F.3d at 761. For 

the group of forty-two parks in the central downtown district near City Hall, each 

organization was entitled to two licenses per year. Id. And the Orlando ordinance 

applied only to events likely to attract twenty-five or more people. Id. at 759.

Fort Lauderdale offers no reason it could not have similarly narrowed the 

Park Rule’s permission requirement or tailored it in some other way. Thus, for 

example, in addition to adding “narrowly drawn, reasonable and definite 

standards” to guide officials’ permitting discretion, Forsyth Cnty., 505 U.S. at 133

(citation omitted), the City could have required permission only for events likely to 

attract groups exceeding a certain size. Or it could have required City permission 

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only for certain parks. Central to the City’s conclusion that public food 

distribution causes problems in parks is a collection of seven citizen and 

organizational complaints about food-sharing events. Six of these are specific to 

the downtown Fort Lauderdale area. The City could have required permission only 

in downtown parks or designated limited areas within parks for sharing food. See

McCullen, 573 U.S. at 493 (evidence of disruptive demonstrations at a single 

Boston clinic did not justify a statewide regulation of demonstrations at abortion 

clinics); see Clark, 468 U.S. at 295 (rejecting challenge to a limited ban on 

camping in Washington, D.C.’s Lafayette Park as applied to an anti-homelessness

demonstration; the Park Service allowed camping in designated areas in other 

parks); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956–57 (11th Cir. 1999) 

(upholding ban on begging that applied only to a five-mile “designated, limited 

beach area” and did not ban begging in “many other public fora”). The City also 

might have allowed groups like FLFNB a limited annual number of food

distribution events in Stranahan Park as of right. Again, we do not presume to tell 

the City exactly how it should manage its parks; all this is only to say that the Park 

Rule’s utterly standardless permission requirement is “substantially broader than 

necessary to achieve” the City’s interest in maintaining its parks. Ward, 491 U.S. 

at 782–83. The Park Rule therefore cannot qualify as a valid regulation of the 

Plaintiffs’ expressive conduct. 

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Alternatively, we evaluate the Park Rule under Clark’s standard for time 

place, and manner restrictions. A content-neutral law regulating the time, place, 

and manner of expression in a public forum must be “narrowly tailored to serve a 

significant governmental interest” and “leave open ample alternative channels for 

communication of the information.” Clark, 468 U.S. at 293. Stranahan Park is “an 

undisputed public forum.” FLFNB I, 901 F.3d at 1238. We underscore that parks

“occupy a special position in terms of First Amendment protection because of their 

historic role as sites for discussion and debate.” McCullen, 573 U.S. at 476

(quotation omitted); United States v. Grace, 461 U.S. 171, 177 (1983) (Public 

parks are “historically associated with the free exercise of expressive activities.”); 

Hague, 307 U.S. at 515 (opinion of Roberts, J.) (“Wherever the title of streets and 

parks may rest, they have immemorially been held in trust for the use of the public 

and, time out of mind, have been used for purposes of assembly, communicating 

thoughts between citizens, and discussing public questions. Such use of the streets 

and public places has, from ancient times, been a part of the privileges, immunities, 

rights, and liberties of citizens.”). “[T]he government’s ability to permissibly 

restrict expressive conduct” in Stranahan Park is therefore “very limited.” Grace, 

461 U.S. at 177. But the government nevertheless “may enforce reasonable time, 

place, and manner regulations” on expression in the park. See id. 

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As a practical matter, there is little difference between this standard and the 

O’Brien test we have just discussed, and, in any event, they yield the same result in 

this case. Clark, 468 U.S. at 298 (observing that the O’Brien standard “is little, if 

any, different from the standard applied to time, place, or manner restrictions”); see

First Vagabonds Church of God, 638 F.3d at 761–62 (analyzing a similar 

ordinance under both standards). Both require that the regulation be narrowly 

tailored to serve a significant government interest. Clark, 468 U.S. at 293, 298. 

Just as it does under O’Brien, the Park Rule’s grant of standardless discretion to 

the City’s permitting officials causes it to fail time, place, and manner scrutiny:

“[a] government regulation that allows arbitrary application is ‘inherently 

inconsistent with a valid time, place, and manner regulation because such 

discretion has the potential for becoming a means of suppressing a particular point 

of view.’” Forsyth Cnty., 505 U.S. at 130–31 (quoting Heffron v. Int’l Soc’y for 

Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981)); Burk, 365 F.3d at 1256 

(“[T]ime, place, and manner regulations must contain narrowly drawn, reasonable 

and definite standards, to guide the official’s decision and render it subject to 

effective judicial review.”) (internal quotation marks and citations omitted). Since 

the Park Rule fails because it is not narrowly tailored, we need not address whether 

it leaves open ample alternative channels for the communication of the Plaintiffs’ 

message. 

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The long and short of it is that the Park Rule as applied to the Plaintiffs’ 

expressive food sharing activities violates the First Amendment. Accordingly, we 

REVERSE the district court’s summary judgment order and REMAND for 

further proceedings consistent with this opinion. 

REVERSED AND REMANDED.

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HULL, Circuit Judge, with whom LAGOA, Circuit Judge, joins, concurring:

I concur in full in the panel opinion. I write separately to emphasize that this 

is the second appeal in this case and that our panel is bound by this Court’s holding 

as to whether the plaintiff FLFNB’s food-sharing conduct is sufficiently expressive 

to warrant First Amendment protection. See Fort Lauderdale Food Not Bombs v. 

City of Fort Lauderdale, 901 F.3d 1235 (11th Cir. 2018). 

In that prior appeal, this Court held that, “on this record,” the nature of the 

plaintiff FLFNB’s weekly food-sharing activity in a public park, “combined with 

the factual context and environment in which it was undertaken,” led to the 

conclusion that FLFNB’s food sharing conduct “express[es] an idea through [that]

activity,” conveys “some sort of message” to a reasonable observer, and constitutes 

“a form of protected expression” under the First Amendment. Id. at 1240–45 

(quotation marks omitted). This holding relied on a well-developed factual record 

about the plaintiff FLFNB’s many years of food-sharing events (1) that are held in

the City’s Stranahan Park, a public forum where the homeless congregate, and 

(2) that are accompanied by FLFNB’s banners and distribution of literature. Id. 

As the panel opinion points out, “most social-service food sharing events will not 

be expressive.” Maj. Op. at 51. Here, however, we are bound by the holding in 

the prior appeal that was based on a particular and extensive list of factual 

circumstances. 

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