Motion for New Trial in Mock-Nazi Salute Case

The Sentinel made brief mention of the upcoming hearing at http://www.santacruzsentinel.com/localnews/ci_23380861/coast-lines-june-4-2013-meeting-tackles-santa? .

My attorneys (who are doing this pro bono) are looking forward to this hearing, considering the city attorney's arguments very weak. I'm less optimistic about the outcome of this hearing. The judge hearing it, Robert Whyte, twice prevented a jury trial and sent the case creeping through the courts for ten years. More accurately it bounced back and forth, and looks like that may continue. If this motion for retrial fails, the attorneys say they are likely to appeal.

However an 11-member panel of the 9th Circuit Court of Appeals in an unusual en banc panel reaffirmed that arrests cannot be legitimately made for anything other than actual disruption--not the appearance of disruption, threatened disruption, virtual disruption, potential disruption, etc. That is exactly what happened here, and what is threatened frequently by mayors since.

I credit the attorneys' willingness to pursue the appeals against the mayors with creating a significant deterrent here. I suppose it's really hard to judge, but I think my willingness and that of others to ignore City Council's "thou shalt not criticize in gestures we don't like" policy has slowed the tide of repression. Though on it marches, for sure.

On rare occasions I've repeated the mock-Nazi salute (see http://www.indybay.org/newsitems/2011/11/09/18698345.php) without any repetition of the arrest or arrest threat. I had thought that City Council had removed some of the First Amendment-hostile language in its "decorum" rules, but the most recent iteration of those rules (at
http://www.cityofsantacruz.com/Modules/ShowDocument.aspx?documentid=29322 shows otherwise).

The rules still state " Any person making personal, impertinent, or slanderous remarks, or becoming boisterous or otherwise disrupting the Council meeting shall be barred by the presiding officer from further attendance at said meeting unless permission for continued attendance is granted by a majority vote of the Council....Every member of the public and every Councilmember desiring to speak shall address the presiding officer... avoiding all indecorous language and references to personalities...Upon instructions of the presiding officer it shall be the duty of the sergeant-at-arms or any police officer present to eject from the Council Chambers any person in the audience who uses boisterous or profane language, or language tending to bring the Council or any Councilmember into contempt..."

On the other hand, the mere making of "personal, impertinent, slanderous, boisterous, indecorous, profane, or contemptuous" language is no cause for ejection unless an actual disruption is caused. This was significantly upheld when the case was forwarded to trial by the en banc panel of the 9th Circuit. And it is also the fundamental basis for appealing the jury verdict last year and demanding a new trial.

On the ground, this means--express yourself, don't be intimidated, and support the First Amendment in City Council chambers, whether it be for strong speakers on the left or the right.

Some folks don't know their p's from their a's. Sorry about that.