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Santa Cruz Nazi Salute Case Headed to Trial

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By Stephanie Rabiner, Esq. on October 07, 2011 1:01 PM

The U.S. Supreme Court has declined to hear an appeal of the Santa Cruz Nazi salute case.

Activist Robert Norse sued the California beach town in 2002, arguing that the city council violated his First Amendment rights. Police ejected him from a public meeting because he protested the mayor's actions with a mock Nazi salute.

An en banc panel of the 9th Circuit ruled that the case should go to trial. By denying the city's appeal, the Supreme Court has let that ruling stand.

The Nazi salute case seems important. It involves protest, mock hate gestures and public meetings. It presents issues central to the First Amendment.

This, however, does not guarantee Supreme Court review--and for good reason.

Each year, the Supreme Court receives about 10,000 writs of certiorari. After they read and summarize each petition, clerks make recommendations to the Justices. The Court then chooses approximately 80 cases.

Those cases are permitted to present oral arguments. Another 50 or so may also be reviewed, but are generally handled only through written briefs.

The Court tends to only grant review to cases that fall into the following categories:

  1. Cases dealing with issues of great public importance;
  2. When there is a split between the appellate courts; and
  3. Cases with compelling constitutional questions.

Though the Santa Cruz Nazi salute case appears to meet two of the above criteria, it actually does not. The Supreme Court doesn't often make constitutional decisions in a vacuum, without an underlying set of facts. Once there is a definitive trial record, the case has a better chance of being reviewed.

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