Hunger, Poverty, and the Criminalization of Food Sharing in the New Gilded Age

INTRODUCTIONHunger may be difficult to understand for those who have not experienced it. Indeed, the global scale of human hunger is immense: despite having decreased substantially since 1990-92,1 the United Nations estimates that around 842 million people, twelve percent of the global population, were "unable to meet their dietary energy requirements in 2011-13[.]"2 In the United States, hunger, officially cognized as "food insecurity,"3 increased substantially in the years leading to, during, and following the Great Recession (December 2007 to June 2009).4 For example, from 2006 through 2012, approximately thirteen million more people in the United States became food insecure, and about ten million more people became impoverished.5 Thus in 2012 approximately forty-nine million people lived in food insecure households.6In this Article, I take the opportunity presented by law students in the nation's capital, who organized the April 2, 2014 law review symposium, "Poverty in the New Gilded Age," to reflect on how United States law and society cognizes hunger and poverty by highlighting an important but understudied split in the circuits of the United States Courts of Appeals over the constitutionality of cities' efforts to criminalize, and otherwise regulate, people who provide food to hungry people within city-owned public places like parks, sidewalks, and streets.7 Adopting the terms preferred by some of the politically motivated social activists who have litigated against their criminalization for sharing food with hungry people, yet who expressly eschew the label of charity, I call such laws the anti-food sharing ordinances, and their sociolegal challenges, the food sharing cases.8Before discussing the circuit split over the food sharing cases, however, I critique the symposium framing of the present sociolegal situation of the United States-the idea of a "New Gilded Age." Part I starts with three critiques of the image chosen to frame the symposium, which foregrounded a solitary, apparently homeless middle-aged, and racially White man. After explaining my concerns that the symposium image unduly conflates homelessness with other situations of poverty, obscures the current demographics of impoverished people in the United States, and fails to train our gaze upon the power elite,9 who are arguably responsible for creating the sociolegal situation of the New Gilded Age, I then ask what law students and critical sociolegal scholars might mean by "the New Gilded Age" and suggest answers through an exploration of how we might understand the United States' first Gilded Age. I argue that the notion of a Gilded Age implies critical questions about "What has been gilt?" or otherwise obscured under garish cover, and address them by contextualizing the periodization of the first Gilded Age within radical Reconstruction, interracial labor Populism, the Jim Crow era, American anti-Asian exclusion and imperialism, and French "revanchism."In Part II, I describe the circuit split in the United States Courts of Appeals, which emerged in 2011, when the Eleventh Circuit en banc upheld the constitutionality of the City of Orlando's complicated permitting requirements against the religious and social activists who sought to share food with hungry people in public parks within a two-mile radius of city hall.10 I discuss First Vagabonds Church of God v. City of Orlando in detail and contrast its reasoning and result with a 2006 Ninth Circuit case, Santa Monica Food Not Bombs v. City of Santa Monica, which held unconstitutional a municipal events ordinance that regulated uses of public property, including food sharing, for not being narrowly tailored, as required by First Amendment freedom of speech jurisprudence.11 Contrasting these cases traces the contours of the circuit split and enables me to summarize what their jurisprudence suggests as to the state of the law regarding the municipal regulation of food sharing in publicly-owned places. …