Hunger, Poverty, and the Criminalization of Food Sharing in the New Gilded Age (2015)

INTRODUCTIONHunger may be difficult to understand for those who have not experienced it. Indeed, global scale of human hunger is immense: despite having decreased substantially since 1990-92,1 United Nations estimates that around 842 million people, twelve percent of global population, were unable to meet their dietary energy requirements in 2011-13[.]2 In United States, hunger, officially cognized as insecurity,3 increased substantially in years leading to, during, and following Great Recession (December 2007 to June 2009).4 For example, from 2006 through 2012, approximately thirteen million more people in 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 opportunity presented by law students in nation's capital, who organized April 2, 2014 law review symposium, Poverty in Gilded to reflect on how United States law and society cognizes hunger and poverty by highlighting an important but understudied split in circuits of United States Courts of Appeals over 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 terms preferred by some of politically motivated social activists who have litigated against their criminalization for sharing food with hungry people, yet who expressly eschew label of charity, I call such laws anti-food sharing ordinances, and their sociolegal challenges, food sharing cases.8Before discussing circuit split over food sharing cases, however, I critique symposium framing of present sociolegal situation of United States-the idea of a New Gilded Part I starts with three critiques of image chosen to frame symposium, which foregrounded a solitary, apparently homeless middle-aged, and racially White man. After explaining my concerns that symposium image unduly conflates homelessness with other situations of poverty, obscures current demographics of impoverished people in United States, and fails to train our gaze upon power elite,9 who are arguably responsible for creating sociolegal situation of Gilded Age, I then ask what law students and critical sociolegal scholars might mean by the Gilded and suggest answers through an exploration of how we might understand United States' first Gilded Age. I argue that notion of a Gilded Age implies critical questions about What has been gilt? or otherwise obscured under garish cover, and address them by contextualizing periodization of first Gilded Age within radical Reconstruction, interracial labor Populism, Jim Crow era, American anti-Asian exclusion and imperialism, and French revanchism.In Part II, I describe circuit split in United States Courts of Appeals, which emerged in 2011, when Eleventh Circuit en banc upheld constitutionality of City of Orlando's complicated permitting requirements against 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 contours of circuit split and enables me to summarize what their jurisprudence suggests as to state of law regarding municipal regulation of food sharing in publicly-owned places. …