Thursday, December 16, 2010

One Win for DemocraticTransparency

Arrest for Self-Corrected Nazi salute violates Constitution's First Amendment

Santa Cruz City Council's ouster of civil rights activist Robert Norse over a protest gesture was 'viewpoint discrimination,' rules 9th Circuit appeals panel. Called a "hissy fit" by secondary councilmember rather than disruption as City lawyers maintain

By Carol J. Williams, Los Angeles Time, December 16, 2010

The city of Santa Cruz violated the 1st Amendment rights of an advocate for the homeless when the mayor had him arrested for giving a Nazi salute at a City Council meeting, a federal appeals court ruled Wednesday.

The unanimous ruling by a full 11-judge panel of the U.S. 9th Circuit Court of Appeals deemed Mayor Christopher Krohn's order to remove activist Robert Norse from the public meeting to be "viewpoint discrimination" rather than an effort to maintain order during discussion about where the homeless would be permitted to sleep.

Chief Judge Alex Kozinski, a libertarian and fierce supporter of 1st Amendment protections, said Norse's ouster was spurred by a councilman's "hissy fit," not any actual disruption of the meeting.

Free speech advocates hailed the ruling as a warning to public officials trying to muzzle opposing voices.

The appeals court reversed a lower court decision to dismiss Norse's lawsuit on grounds that city officials are immune from such legal actions. The case had been dismissed by U.S. District Judge Ronald M. Whyte of San Jose on the eve of trial, denying Norse any opportunity to argue that his rights had been violated, the appeals court said.

"This kind of behavior not only occurs

in Santa Cruz but in other places too,"

said David J. Beauvais, an Oakland

attorney specializing in 1st Amendment

issues who represented Norse in the

protracted legal action.

Kozinski wrote a concurring opinion to underscore the constitutional issues behind the decision to send the case back for trial. The chief judge said a video of Norse's gesture at the March 12, 2002, meeting, part of the case record as well as available on YouTube, "speaks for itself.

"Norse raises his hand in a brief, silent protest of the mayor's treatment of another speaker. The mayor ignores Norse's fleeting gesture until Councilman [Tim] Fitzmaurice throws a hissy fit," Kozinski said in arguing that Norse' stiff-armed salute fell far short of the disruption necessary to justify his removal and arrest.

At a June hearing on Norse's lawsuit, the 9th Circuit judges made clear their concerns about the city's claim to unlimited latitude in controlling expression at public meetings.

Norse is an activist with Homeless United for Friendship and Freedom and has been battling Santa Cruz officials over their treatment of the city's down-and-out for more than a decade.

George J. Kovacevich, attorney for the city of Santa Cruz, said city officials hadn't yet decided whether to seek U.S. Supreme Court review or let the case go to trial. He said he was disappointed in the ruling and concerned it could lead to more unruly behavior at public meetings.

"But that's always a rub with the 1st Amendment," he said. "I'm not saying that's good or bad, just that it goes with the territory."

# # #

carol.williams@latimes.com

Sunday, June 20, 2010

Free Speech Lawsuit Appeal Gets Re-Appealed

City of Santa Cruz's Council Decorum
Upset by Zippy Nazi Salute in 2002 ~~
Facing En Banc Ruling Tuesday, June 22

Story by PAUL ELIAS, Associated Press Writer * Update: 06/19/2010 10:03:26 AM PDT

found online at: http://www.mercuryn ews.com/breaking -news/ci_ 15333443

SAN FRANCISCO AP — Robert Norse's Nazi salute lasted fewer than five seconds before he was removed from the Santa Cruz City Council meeting in handcuffs. 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.

On Tuesday, the 9th U.S. Circuit Court of Appeals will 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 homeless issues."

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 Nazi's 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 meeting.

"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.

A 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.

Officials 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 funny faces.

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 Santa Cruz.

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. The 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."

# # # #

Linda's Hearth note: As it happened, I was present to see the fast withdrawal of Norse's "saluting hand". From where I stood, he clearly did NOT intend to disrupt that meeting, and it was also clearly shown that he was not working in concert with others who spoke during public comments that evening -- and particularly he was not with the woman at the podium who was shut down just before she was finished speaking. -LEL