A friend of mine used to get upset whenever she heard the word “Nazi” used as a punchline. She had a good reason: joking about Nazis in a lighthearted way, she argued, subtly belittled the pure evil committed by Nazis in and around Germany during WWII.
Perhaps the 9th Circuit Court of Appeal would agree. Earlier this week, the 9th Circuit ruled that the use of a “Nazi salute” during a city council meeting justified the ejection of the offending audience member and did not violate constitutional protections of freedom of speech.
The case, Norse v. City of Santa Cruz, arose out of two incidents in 2002 and 2004 in which Robert Norse gave a Nazi salute in protest. In the 2004 incident, Robert Norse was clearly disruptive, parading around the council chambers. The 2002 incident was a closer call: Norse briefly used the salute to protest the Mayor’s decision to cut off another speaker from speaking at the podium.
The 9th Circuit’s written opinion unfortunately did not include a video of either incident embedded in the opinion. But I was able to find the clip from the 2002 incident on Youtube:
The clip makes one wonder: Norse has had not one, but two trips to the Ninth Circuit for incidents in which he used a Nazi salute at a Santa Cruz City Council meeting. How frequently did this guy go around giving Nazi salutes?
It turns out pretty frequently.
As the 9th Circuit wrote:
[T]wo Council members in the previous months had expressed to Norse their abhorrence of his Nazi gestures which reasonably suggests that Norse intended his salute at the March 12, 2002 meeting to be disruptive.
As you can see from the clip, the 2002 incident was a closer call. The court noted that if the ejection was meant to suppress a particular viewpoint, it would have been improper. See White, 900 F.2d at 1426.
The reality is first amendment freedom of speech is more limited in a public meeting than in a public forum, as, for example, a street corner. See White v. City of Norwalk 900 F.2d 1421, 1425 (9th Cir. 1990). Why is this? For one, meetings tend to be held in rooms away from public commotion for a reason — to permit the public business to be attended to away from distractions. And secondly, if there were no limits on freedom of speech and anyone could march around a City Council meeting chambers without consequence, nothing would get done.
The courts have gone even further to protect a public entity’s right to freedom of speech during a public meeting. A chair of a meeting “does not violate the first amendment when it restricts public speakers to the subject at hand,” and a chair of a meeting may cut off a speaker “if his speech becomes irrelevant or repetitious.” Kindt v. Santa Monica Rent Control Board 67 F.3d 266, 270 (9th Cir. 1995) (quoting White, 900 F.2d at 1425).
Not all the judges on the panel agreed with the ruling in Norse v. City of Santa Cruz. Judge Tashima argued that:
Most reasonable persons would conclude, after viewing the same video, that this meeting was no more “difficult” or “disorderly” than any other small-town Council meeting.
Having sat through my fair share of small town council meetings, I have to agree that I’ve seen far more disruptive outbursts in which the individual was not ejected. However, I agree that the “Nazi salute” gesture itself is highly offensive and disruptive and its disruptiveness in itself could have justified the ejection. The Court’s ruling in Norse continues the pattern of not second-guessing incidents years after the fact and giving local bodies the discretion to run their bodies without disruption.
What do you think?