It’s Still a Crime to Feed the Homeless in Myrtle Beach – Is That Constitutional?

It seems to me that there is a clear divide nationwide between people who have the capacity for empathy and people who just don’t care about other people. Nowhere is this clearer to me than in the war on the homeless in Myrtle Beach and other South Carolina cities.

Should there be a war on the homeless in Myrtle Beach? Or, should we be fighting a war against homelessness, one that is fought with compassion and kindness?

Is it illegal to feed a homeless person who is starving?

If you are preventing other people from sharing food with the homeless, what are you? Law and Order? Civic-minded? Or, just an a**hole?

Across the country, cases challenging bans on feeding the homeless are making their way through the courts – in 2014, Horry County’s circuit court ruled that it was constitutional for the City of Myrtle Beach to outlaw feeding the homeless.

Last month, the Eleventh Circuit Court of Appeals reversed a district court opinion that upheld Fort Lauderdale’s ban on feeding the homeless, finding that the act of sharing food in a public park was protected speech under the First Amendment.

What is Food Not Bombs?

“A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.”  – Martin Luther King, Jr.

Food Not Bombs is an organization that shares food with anyone who is hungry in planned events across the country. Their message is simple: our nation should not be spending trillions of dollars on continuing to build an already oversized military when people are starving without food to eat…

We recover food that would have been discarded and share it as a way of protesting war and poverty. With fifty cents of every U.S. federal tax dollar going to the military and forty percent of our food being discarded while so many people were struggling to feed their families that we could inspire the public to press for military spending to be redirected to human needs. We also reduce food waste and meet the direct need of our community by collecting discarded food, preparing vegan meals that we share with the hungry while providing literature about the need to change our society. Food Not Bombs also provides food to protesters and striking workers and organizes food relief after natural and political crisis.

If you haven’t guessed yet, federal and local governments don’t like Foods Not Bombs. Their message is clear: stop allocating our tax money to the military industrial complex and start taking care of our citizens with social programs – a message that is apparently so radical that the US government declared them a “terrorist organization” in 1988:

The United States government started to claim we were “America’s Most Hardcore Terrorist Groups” soon after we were first arrested for sharing free vegan meals in Golden Gate Park in the fall of 1988 – a year before the end of the Cold War. All we had done was claim we had the right to feed the hungry in protest to war and poverty. Military contractors are worried that we might influence the public to realize our taxes could be spent on human needs instead of war, and that this could threaten their billions of dollars in profits from arming the United States government. The U.S. government was also concerned that our failure to stop sharing food as directed would threaten their ability to manipulate the hungry by moving food programs to more desirable locations or by threatening to withhold food if the public didn’t cooperate with the authorities. Since we will provide food wherever and whenever it is needed, this interferes with the government’s ability to use food for social control.

What did the Eleventh Circuit Hold in the Food Not Bombs Case?

The Eleventh Circuit held that “[Food Not Bombs’] outdoor food sharing is expressive conduct protected by the First Amendment.

How is “expressive conduct” defined for purposes of the First Amendment? And how is sharing food “expressive conduct?”

What is Protected Speech Under the First Amendment?

Food Not Bombs has weekly food sharing events at Stranahan Park in Fort Lauderdale, similar to the event at Chapin Park where they were feeding the homeless in Myrtle Beach.

As they are sharing food, a Food Not Bombs banner is displayed along with their logo (a fist holding a carrot), and members pass out literature at the event. Despite this, the City of Fort Lauderdale argued that their activity was not protected speech and that the City has the right to prevent the organization from feeding people…

Expressive Conduct

There are two types of speech that are protected under the First Amendment. The first, spoken or written words, is easy enough to identify as protected speech. For example, telling a police officer to “go f*** himself” is, literally, protected speech.

But, you don’t have to articulate words for your activities to be protected under the First Amendment. The US Supreme Court has held that:

A “narrow, succinctly articulable message is not a condition of constitutional protection” because “if confined to expressions conveying a ‘particularized message’ [the First Amendment] would never reach the unquestionably shielded painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.”

Conduct is “expressive conduct” protected under the First Amendment if a “reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message.”

Consider:

  • Walking is not necessarily expressive conduct but walking in a picket line or parade certainly is. United States v. Grace, 461 U.S. 171, 176 (1983);
  • Sitting down is an ordinary, non-expressive activity. Unless you are sitting down in a public library to protest segregation. Brown v. Louisiana, 383 U.S. 131, 141–42 (1966); and
  • Getting naked is not necessarily expressive conduct, but nude dancing may be. City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000).

Furthermore, the location of the group’s events in a public park near government buildings – a traditional location for public forums – shows that the sharing of food is expressive conduct intended to convey a message.

And, the treatment of homeless people in Fort Lauderdale has been a matter of public concern for some time – the central issue that Foods Not Bombs was founded to address.

Conduct Alone or Explanatory Speech

The US Supreme Court has held repeatedly that conduct alone can be expressive conduct that falls under the First Amendment’s protection – there is no need for accompanying explanatory speech.

Despite this, Food Not Bombs has “accompanying explanatory speech” everywhere you look. At their events, there are banners and literature that is being distributed. On their website, they say, “Stop making bombs and feed people” a hundred different ways… There is 0 chance that the City of Fort Lauderdale, the city’s attorneys, or any court is confused about whether this organization has a political message…

The Act of Sharing Food is Expressive Conduct

The Eleventh Circuit opinion points out that the very act of sharing food with other people has always been an act of expression, citing Jesus and Abraham Lincoln:

The Bible recounts that Jesus shared meals with tax collectors and sinners to demonstrate that they were not outcasts in his eyes. See Mark 2:13–17; Luke 5:29–32. In 1621, Pilgrims and Native Americans celebrated the harvest by sharing the First Thanksgiving in Plymouth. President Abraham Lincoln established Thanksgiving as a national holiday in 1863, proclaiming it as a day of “Thanksgiving and Praise to our beneficent Father” in recognition of blessings such as “fruitful fields and healthful skies.” John G. Nicolay & John Hay, 2 Abraham Lincoln: Complete Works 417–418 (1894). Americans have celebrated this holiday ever since, commonly joining with family and friends for traditional fare like turkey and pumpkin pie.

So, What Happened in Myrtle Beach?

Like the Fort Lauderdale case, a court in Horry County found that the City of Myrtle Beach’s ordinance restricting the sharing of food with the homeless in Myrtle Beach was constitutional.

The facts were basically the same – the sharing was done in a public park (Chapin Park) located close to government offices, it was open to the public, and it was done by the same group with the same clearly expressed message.

I see two differences – first, as far as I know, the decision was not appealed. The case was argued by Susan Dunn, the legal director of the SC ACLU and it appears that they dropped the case after the circuit court ruled against them. Second, the case was a criminal charge (for feeding homeless people) in SC state court and not federal court – the Fort Lauderdale case was a federal section 1983 action filed in the district court.

Although there had not been a single instance of a person getting sick from the food, the City argued that the ban was necessary to maintain control of city parks and to ensure unsafe food was not being served.

The City does allow requests for permits for mass feedings, but only four times per year – that’s a long time for a hungry person to wait…

On the other hand, you can feed the homeless in Myrtle Beach on private property without a permit.

The McDonald’s Incident

Earlier this year, a tourist in Myrtle Beach approached a homeless man on the street and offered to buy him a meal. They went into a McDonald’s, the tourist bought a meal for the homeless man, and then the management attempted to kick them out.

Then, a police officer showed up and demanded that they leave the restaurant. Sound reasonable?

Why do we need to argue over First Amendment protections to force our elected officials to allow citizens to perform the most basic acts of kindness? Do people have a basic human right to food and nourishment? Do we need to resort to the courts to enforce our First Amendment right to political expression to feed people?

Can’t we just feed people who are hungry?

Criminal Defense and First Amendment Lawyer in Columbia and Myrtle Beach, SC

Lacey Thompson is a SC criminal defense and First Amendment lawyer representing clients in Richland County, Lexington County, Horry County, and the surrounding areas.

If your First Amendment rights have been violated, or if you have been charged with a crime in SC, call now at 843-444-6122 or contact us online to talk with a Myrtle Beach criminal defense attorney today.

One Response to “It’s Still a Crime to Feed the Homeless in Myrtle Beach – Is That Constitutional?

  • Michael Lorence
    2 months ago

    Great article. Thank you. It is sad that one must resort to the 1st A. to feed people. The underlying problem (which until recently was taboo and could not be discussed in our “free” society) is capitalism which is based on the theft of the labor of those who work and produce everything and based on the economic necessity that society only produces what is profitable, not what is needed for human existence and well being. We need to figure out an American version of socialism..

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