FREE SPEECH — "Robert Norse's Nazi salute lasted fewer than
five seconds before he was removed from the Santa Cruz City Council
meeting in handcuffs, notes Paul Elias for the Associated Press. "But the Santa Claus-bearded gadfly's free
speech lawsuit against the city has lasted more than six years and may
be destined for the U.S. Supreme Court."
Today, the 9th U.S. Circuit Court of Appeals was set to convene a rare 11-judge panel to consider
how thick-skinned and tolerant public officials need to be before they
can silence and evict dissenters from meetings.
"It's not about a
Nazi salute. It's not about that gesture," said Norse, who has been
arrested numerous times for his outspoken support of the homeless, who
are highly visible in Santa Cruz. "It's about City Council rules that
are becoming more oppressive because they don't want to deal with
Norse said he was protesting what he viewed as
the mayor's unfair cutting off of a speaker criticizing the council.
Norse said he abhors the Nazis' views.
Santa Cruz city council meetings attract an endless stream of
dissenters, gadflies and activists demanding to be heard. In response,
the city council enacted rules prohibiting disruptive behavior and
imposed time limits on speakers.
"There is an ongoing struggle
here to push back on attempts to destroy our meetings," said Santa Cruz
Mayor Mike Rotkin. "We wrestle with this all the time. Our goal is to
maximize public input."
Rotkin alleges that Norse's salute during a
2002 meeting was part of a concerted effort to disrupt proceedings and
was done in support of others that night intent on disrupting the
"It's not his views that are at issue, I support people's
rights to stand up and tells us that we are idiots," Rotkin said.
three-judge panel of the appeals court sided with the city in a
November ruling, which upheld a trial court's decision. But underscoring
how contentious the legal issue is, a majority of the 26 active judges
on the court voted to rehear the case. Such "en banc" rehearings are
rare and often lead to review by the U.S. Supreme Court.
across the country have grappled with this issue for decades,
especially when agenda topics are particularly controversial. Most open
meeting rules contains prohibitions against disruptive behavior and
limit the amount of time speakers can discuss items on the agenda.The
question then becomes, what is disruptive?
"There is a line
between disruption and discomfort," said University of California, Davis
law professor Vikram Amar. "And the bar for disruption has been set too
low – the courts have given local governments too much leeway in
defining disruption."Last week, the chairman of an Elmhurst, Ill.
City Council committee evicted Darlene Heslop from a meeting discussing
a lobbying contract for rolling her eyes, pretending to yawn and making
Last year, the Virginia Supreme Court upheld a
disorderly conduct conviction of Duane Howard, an outspoken gadfly who
was removed in handcuffs from a Roanoke City Council meeting in 2005 for
yelling "let him speak" during a contentious debate over whether to
tear down a historic football stadium.
"In the end it becomes a
matter of principle," Roanoke's chief attorney Donald Caldwell said of
the city's aggressive defense of Howard's conviction and $100 fine.
"Your First Amendment rights are not unlimited and for government to
work it has to work in an orderly fashion."
For Norse, his arrest
on March 12, 2002 was a culmination of tactics employed by the City
Council to silence his outspoken support of the homeless population in
The issue is a contentious one in Santa Cruz, pitting
downtown merchants and longtime residents against college students and
activists who view such city ordinances prohibiting sitting and lying on
public sidewalks as draconian overreactions to the highly visible
homeless population.Norse's salute and arrest captured in
videotape and a federal trial court judge and a three-judge panel of the
appeals court relied on the clip to rule in the city's favor.
five-minute clip shows a frustrated City Council trying to maintain
order during a rancorous meeting. At the midway point, the mayor tells a
speaker her time has expired and asks her to step away from the
lectern. As she leaves, Norse raises his left hand in a Nazi salute in
support of the dismissed speaker.The mayor didn't see the salute,
but it was brought to his attention by another council member who urged
Norse's eviction. When Norse refused the mayor's eviction order he was
arrested and charged with disorderly conduct. The charges were later
dropped and Norse sued.
"I didn't intend to disrupt the council
meeting, it was just a show of dissent," said Norse, who said council
rules allow for clapping but not hissing and also authorizes audience
members to silently hold up signs. "It's ridiculous that you can hold up
signs, but not your hand."