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Nazi Salute at City Meeting Protected by First Amendment

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By Tanya Roth, Esq. on December 22, 2010 5:48 AM

Santa Cruz, California, is a laid-back, granola-friendly, surfer-centric kind of town. So the legal battle over a "disruption" of a city council meeting due to an act of free expression is all the more surprising.

Equally striking is the unanimous Ninth Circuit Court of Appeals decision that the Nazi salute is protected speech. Homeless advocate Robert Norse's salute was an expression of protected speech, not a disruption of the meeting and his suit against the council, mayor, police and city may proceed, the Court held.

Robert Norse has been an advocate for the poorest in Santa Cruz for decades and has constantly battled with city officials over the treatment of the homeless, reports The Los Angeles Times. During a city council meeting, in opposition to the mayor's treatment of another speaker at the meeting, Norse raised his hand in a silent Nazi salute. This action got Norse removed from the meeting for disruptive behavior and held by police with no charges for over five hours before he was released. Norse sued.

The case was dismissed by the trial court on the eve of trial, finding that as government representatives acting in their official capacity, the council members and mayor and arresting officers had immunity from lawsuits. The court of appeals found this dismissal did not allow Norse to argue his constitutional rights had been violated, an argument the appellate court found to be worthy of a hearing by the court.

In a concurring opinion, Chief Judge Alex Kozinski used descriptive words to describe why, in his opinion, Norse did not disrupt the meeting and the council members therefore trampled on his First Amendment rights by tossing him out.

Judge Kozinski wrote, "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." Further, The Times reports that the judge wrote this description of how the First Amendment works in practice:

Councilman Fitzmaurice clearly wants Norse expelled because the "Nazi salute" is "against the dignity of this body and the decorum of this body" and not because of any disruption. But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech. (Citations omitted)

In a public forum, there will be opposing and even offensive opinions, but as long as there are no actual disruptions to the proceedings, the government will have to lump it -- at least according to the 9th Circuit. The Santa Cruz City Attorney, George J. Kovacevich, told The Times he was not sure whether or not the city would appeal to the Supreme Court or let the case go to trial.

All those in favor of a trial, raise your hands (quietly) and say "aye."

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