9th Circuit Mandates New Trial in Free Speech "Nazi Salute" Lawsuit Against City

In an earlier article ("9th Circuit Court Slaps Santa Cruz City Attorney in Mock-Nazi Salute Case" at http://www.indybay.org/newsitems/2010/06/28/18652079.php), I I discuss the 10-judge hearing down in Pasadena this summer and how badly City Attorney Kovocevitch's arguments came off. For once, it seemed, judges were actually listening.

This case concerns the civil rights of advocates in a stacked forum (City Council) which has traditionally been hostile to homeless civil rights on the streets. Many people rightly wonder, "why bother with City Council anyway?" After years of frustration, I don't really have a good answer.

A body stacked with neo-liberal gentrification maestros masquerades as progressives or "moderates". It has legislated away civil rights for the poor on the streets and continues to make the act of sleeping at night outside (in a city with no shelter for 85% of its homeless). The point: to establish a "comfort zone" for the frightened and prejudices, whose legitimate concerns about housing, health care, jobs, the war, and the economy are being displaced onto "the smelly homeless". "Quality of life" is to be regained under this deluded theory by driving the poor out of sight and out of town instead of ending the economy-devouring Imperial War Machine and the lopsided wealth distribution.

Some courts, w can see, still defend the right to attend a Council meeting and speak there for three minutes (even if you can't get your subject on the agenda). But this whole issue doesn't mean much in the day-to-day homeless life where basic concerns are denied like the basic right to sleep legally somewhere), the right to not have one's property searched and seized arbitrarily, the right to protest these conditions, the right to fair treatment by public agencies and private businesses, etc.

Still, while I'd have much preferred to see a successful assault on the Sleeping Ban (as was the case in L.A., San Diego, Fresno, and Laguna Beach), this seemed a good well-documented opportunity to force the City Council to cut back on its repression. This arrest in March of 2002 was the latest in a cycle of repressive incidents.

The cycle of repression has continued. With Mayor Coonerty coming back into power with a right-wing majority on the Council, the federal courts and the streets may be the only avenues of redress.

Hopefully this court decision--and a subsequent victory in the trial--will make the Coonerty Council and its cops more reluctant to stifle regular human dialogue and protest at City Council. And perhaps cut short some of its homeless-ophobia downtown.


There were some strong and encouraging statements made by the 10-judge panel:

THE ENTIRE 10-JUDGE PANEL unanimously wrote:

"The City contends that only certain portions of its meetings are limited public forums and that no members of the public have any First Amendment rights at all once the public comment period has concluded. The City cites no support for this proposition, and there is none.

In City of Norwalk, we held that city council meetings, once open to public participation, are limited public forums. 900 F.2d at 1425. A council can regulate not only the time, place, and manner of speech in a limited public forum, but also the content of speech—as long as content-based regulations are viewpoint neutral and enforced that way.

What a city council may not do is, in effect, close an open meeting by declaring that the public has no First Amendment right whatsoever once the public comment
period has closed. As we explained in Norwalk, the entire city council meeting held in public is a limited public forum. But the fact that a city may impose reasonable time limitations on speech does not mean it can transform the nature of the forum by doing so, much less extinguish all First Amendment rights. A limited public forum is a limited public forum. Perhaps nothing more, but certainly nothing less. The City’s theory would turn the entire concept on its head.

Thus, even though we can tell from the face of the amended complaint that Norse’s provocative gesture was made after the public comment period closed, Norse still had a First Amendment right to be free from viewpoint discrimination at that time. The City’s argument proves the danger of its theory. The City contended at oral argument before us that, because the public had no First Amendment rights after the public comment period had closed, the Council could legitimately eject members of the public who made a “thumbs down” gesture, but allow members of the public who made a “thumbs up” gesture to remain.11

We note that we have been unable to find a single First Amendment case where a person has the right to be in a place but has no First Amendment rights once there. Rather, the First Amendment test itself accounts for the nature of the forum and, at its most restrictive, only permits viewpoint neutral restrictions that are “reasonable in light of the purpose served by the forum.”) (“[S]tudent First Amendment rights are applied in light of the special characteristics of the school environment.”) (“[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological
objectives of the corrections system.”).

When queried at oral argument whether that action would constitute classic viewpoint discrimination, the City responded that it was “just human nature.” We decline the City’s invitation to rewrite First Amendment law to extinguish the rights that citizens have when they attend public meetings.

We also decline the City’s invitation to rewrite the rule announced in Norwalk. There, we held that a city’s “Rules of Decorum” are not facially over-broad where they only permit a presiding officer to eject an attendee for actually disturbing or impeding a meeting. In this case, the City argues that cities may define “disturbance”
in any way they choose. Specifically, the City argues that it has defined any violation of its decorum rules to be a “disturbance.” Therefore, it reasons, Norwalk permits the City to eject anyone for violation of the City’s rules—rules that were only held to be facially valid to the extent that they require a person actually to disturb a meeting before being ejected.

We must respectfully reject the City’s attempt to engage us in doublespeak. Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption. The City cannot define disruption so as to include non-disruption to invoke the aid of Norwalk.

The city officials are not entitled to absolute immunity. Local legislators are absolutely immune from liability... But “not all governmental acts by . . . a local legislature[ ] are necessarily legislative in nature.”. “Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the
official performing it.” Thus, we must determine whether the actions of the Council members, when “stripped of all considerations of intent and motive,” were
legislative rather than administrative or executive.

In this Circuit, we have developed a four-part test to determine whether an action is legislative in nature. We consider
(1) whether the act involves ad hoc decisionmaking, or the formulation of policy;
(2) whether the act applies to a few individuals, or to the public at large;
(3) whether the act is formally legislative in character; and
(4) whether it bears all the hallmarks of traditional legislation.”

In this case, we are dealing with city officials who ejected one individual from City Council meetings. Separately, and with regard to his argument for municipal liability, Norse argues that the officials were formulating policy. We need not determine whether the ejections “effectuate[d] policy,” because the second, third, and
fourth factors clearly point to this being an administrative rather than legislative act. Thus, Krohn, Kennedy, and Fitzmaurice are not entitled to absolute immunity for their part in removing Norse from the meetings. Although the record is incomplete, it appears that in both 2002 and 2004 Norse was singled out for expulsion and arrest. Mayors Krohn and Kennedy did not take any formal legislative action, but rather ordered Norse out of the room. And both expulsions lacked the hallmarks of the legislative process.

With respect to the 2002 arrest, Krohn ordered Norse to leave on Fitzmaurice’s motion without any debate. The motion was predicated on the “dignity” of the council rather than the council’s performance of its obligations to the citizens of Santa Cruz. And with respect to the 2004 arrest, the record does not reveal a motion based even on dignity, let alone a legislative decisionmaking process. Thus the decisions to expel Norse were administrative, not legislative, so the defendants are not entitled to absolute immunity.




Chief Judge KOZINSKI, with whom Judge REINHARDT ADDITIONALLY WROTE:

I join Judge Thomas’s opinion because it’s clearly right. I write only to observe that, even after the procedural irregularities that deprived Norse an opportunity to present evidence,

it’s clear that the council members aren’t entitled to qualified immunity. In the Age of YouTube, there’s no need to take my word for it: There is a video of the incident that I’m “happy to allow . . . to speak for itself.” see http://www.youtube.com/watch?v=ZOssHWB6WBI (last visited Nov. 16, 2010).

This video (also found in the record) clearly shows that Norse’s sieg heil was momentary and casual, causing no disruption whatsoever.

It would have remained entirely unnoticed, had a city councilman not interrupted the proceedings to take umbrage and insist that Norse be cast out of the meeting.
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.

The Supreme Court long ago explained that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Even in a limited public forum like a city council meeting, the First Amendment tightly constrains the government’s power; speakers may be removed only if they are actually disruptive.

We’ve said so twice. In White v. City of Norwalk,we explained that speech must “disrupt[,] disturb[ ] or otherwise impede[ ] the orderly conduct of the Council meeting” before the speaker could be removed. ...We upheld a spectator’s ejection from a public meeting only because he was “disrupting the proceedings by yelling and trying to speak when it was not time for” discussion..

Had he been given a chance, Norse could no doubt have presented lots more evidence that he never disrupted the Santa Cruz council meeting, but what would have been the point? The video 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 Fitzmaurice throws a hissy fit.

“Listeners’ reaction to speech is not a content-neutral basis for regulation. . . . Speech cannot be . . . punished or banned[ ] simply because it might offend a hostile” member of the Santa Cruz City Council. The council members should have known that the government may never suppress viewpoints it doesn’t like. Though
defendants point to Norse’s reaction to Councilman Fitzmaurice as the “disruption” that warranted carting him off to jail, Norse’s calm assertion of his constitutional rights was not the least bit disruptive.

The First Amendment would be meaningless if Councilman Fitzmaurice’s petty pique justified Norse’s arrest and removal.

Even viewing the facts most favorably to the city council members, their behavior amounts to classic viewpoint discrimination for which they’re not entitled to qualified immunity. And that’s what the district court should have held when it set about resolving qualified immunity as a matter of law. If it was going to take it upon itself to grant summary judgment to anyone on that issue, it should have been to Norse.

On remand, the district court can set things right by holding, as a matter of law, that the city council members are not entitled to qualified immunity, and proceeding to assess damages.


ATTORNEY BEAUVAIS TO DISCUSS CASE THURSDAY DECEMBER 16TH ON FREE RADIO SANTA CRUZ

At 7 PM one of the two attorneys who argued the case before the court (and has fought this battle before a district judge (twice) and the court of appeals (twice) will discuss the case and its significance at 101.1 FM (http://www.freakradio.org). Call in questions and comments at 831-427-3772.


BACKGROUND

More background on the case can be found at http://www.indybay.org/newsitems/2010/06/28/18652079.php ("9th Circuit Court Slaps Santa Cruz City Attorney in Mock-Nazi Salute Case")