Vikram David Amar and Alan Brownstein

The Ninth Circuit Errs in Santa Cruz City Council Protester Case

By VIKRAM DAVID AMAR and ALAN BROWNSTEIN


Friday, November 20, 2009

In this column, we return to a case that we first wrote about over two years ago, involving a silent but pesky protester at a city council meeting who was arrested for his expressive conduct, and who then sued city officials under the First Amendment.

When we analyzed the dispute in our earlier column, the case -- Norse v. City of Santa Cruz -- was going up to the United States Court of Appeals for the Ninth Circuit. Two weeks ago, the Ninth Circuit issued its ruling, affirming a decision by the trial judge to dismiss the First Amendment claims.

The appellate ruling is somewhat disappointing; one would have hoped the Ninth Circuit would have reached a more fair-minded result and issued a more well-reasoned opinion, even if the plaintiff seems to some folks to be a bit of a pest.

The Facts of the Case

The facts of the case are pretty straightforward and -- unlike the inferences the Ninth Circuit judges drew from those facts -- largely uncontested. In 2002, Robert Norse was ejected from the audience at a Santa Cruz City Council meeting after he silently but emphatically raised his arm for one second simulating a Nazi salute.

It appears that Norse made the Nazi salute in order to protest the Mayor's decision to cut off an animated individual who was at the podium in the front of the room during the meeting's "public comment" period, but whose time had expired. As the Mayor was silencing the speaker, one or two members of the audience (but not Norse) in the rear of the room "were creating a disruption." Importantly, Norse's salute was made after the people causing the ruckus had already left the room and the arguably boisterous speaker had left the podium.

Although the Mayor had quickly moved on to other business and thus did not see Norse's sarcastic salute, a Councilmember interrupted the Mayor, told him of Norse's gesture (which Norse had made at earlier Council meetings as well, to the displeasure of the Council), and asked that the Mayor remove Norse because Norse had offended the "dignity of the body."

Norse then began to challenge the Councilmember's suggestion that he be expelled, and the Mayor immediately said to Norse: "Please leave." After Norse refused and was arrested, he filed suit arguing that the Mayor's action and the subsequent arrest violated the First Amendment.

We strongly recommend that readers view the event for themselves, using this link to YouTube.

The District Judge's Opinion and the Ninth Circuit's Affirmance

Federal district judge Ronald Whyte in San Jose dismissed the lawsuit, reasoning that cities have a "great deal of discretion" to enforce public-meeting decorum rules, provided that the rules target disruptive behavior and do not punish individuals on account of their message.

Although the Councilmember's reaction to Norse might have been based on the content of Norse's expression, Judge Whyte explained, the Mayor "was suddenly faced with a meeting that had been interrupted by an offended council member," and one in which "Norse had begun to verbally challenge" the Councilmember. Under these circumstances, Judge Whyte ruled that the Mayor's actions were permissible. In our earlier column, we argued that Judge Whyte's First Amendment analysis was flawed.

The Ninth Circuit panel, by a 2-1 vote, affirmed Judge Whyte's dismissal, on similar but slightly different reasoning from that used by Judge Whyte.

After acknowledging that decorum rules "may not be enforced in order to suppress a particular viewpoint," the Ninth Circuit majority concluded that:
"on the basis of the undisputed factual record and the videotaped proceedings, it is clear that the salute was in protest of the chair's enforcing the time limitations and in support of the disruption that had just occurred in the back of the meeting room. We [therefore] agree with the district court that the ejection was not on account of any permissible expression of a point of view. . . . The Council member who called the salute to the Mayor's attention could reasonably have interpreted it as intended to support and to further the disruption that had just been occurring in the room."

The Problems Plaguing the Ninth Circuit's Approach

We see a host of problems with the Ninth Circuit's analysis. At the outset, let us put to one side the large question whether the "disruption" bar is set too low in this case -- that is, as we asked in our earlier column, whether the First Amendment and democracy require city officials to be more thick-skinned and more tolerant of minor disorder than they were in this episode. For present purposes, we will assume that the persons in the back of the Santa Cruz City Council room really were engaged in the (significant) kind of disruption that can be prohibited and punished.

Even then, the Ninth Circuit's ruling is troubling. First, the court's conclusion that Norse's expressive action was "clear[ly] . . . in support of the disruption" is, to be blunt, hard to swallow. Norse might have been supporting the disruption; it seems more likely that he was signaling his disapproval of the way the speaker in the front of the room was being handled by the Council, regardless of whether he thought that the speaker's persistence, or the disruption in the back of the room, was legitimate. At this stage in the litigation, before a trial has occurred, all reasonable inferences are supposed to be resolved in Norse's favor. To say that it is "clear" that he was expressing himself "in support of the disruption" simply isn't plausible or fair.

The Ninth Circuit majority itself seemed to realize its overreaching here, because it later restated its point in less absolute terms, saying that "the Council Member who called the salute to the Mayor's attention could reasonably have interpreted [Norse's act] as intended to support and to further the disruption." What someone else could reasonably interpret Norse as having intended is very different from what Norse himself "clear[ly]" intended.

One Key Question: Why Did the Ninth Circuit Deem Norse's Intent To Be So Important Here?

That brings us to a second weakness of the majority opinion -- namely, its failure to explain why Norse's intent is so important in any event. Judge Tashima in his dissent argued that Norse's intent is totally irrelevant. We would not go that far. A speaker's intent sometimes has relevance in free speech cases. But the Councilmember's actual intent in ordering Norse's removal may be even more relevant to the First Amendment analysis.

Consider Norse's alleged motive first. While intent may be an important element of many offenses, it serves a special purpose when the alleged wrongdoing constitutes public speech with political content and First Amendment principles are in play. As noted constitutional scholar Kent Greenawalt has argued, in such situations government sanctions must be limited to situations in which the accused has evinced some serious intent to solicit or encourage specific wrongdoing. Permitting liability based on any intent below that level risks punishing critical or unpopular advocacy under the guise of trying to avoid unlawful consequences. Greenawalt adds that the necessary intent cannot be found unless "external facts foreclose other possible constructions" of the speaker's conduct. The facts here do not come close to satisfying that exacting standard.

Moreover, given the broad agreement among First Amendment scholars and judges that the government may not act in a viewpoint-based way, that is, it may not act in order to stifle a particular message, the intent of the Councilmember who escalated the situation would seem to be the most important state of mind into which inquiry need be made. And whether or not the Councilmember could "reasonably" have understood Norse to be "in support of" the disruption, that Councilmember actually explained his own intent behind removing Norse so that we needn't speculate about it-- he said he was intervening because he found Norse's action to be offensive "to the dignity of the body."

Notice that the Councilmember did not say that he found Norse's action to be disruptive or likely to encourage others to be disruptive. Instead, the government official responsible for ejecting Norse himself objected only to Norse's having inflicted damage to the "dignity" of the Council. That sounds a lot like a viewpoint-based motivation to us – singling Norse out because Norse's message is critical of the Council and its rules. The Councilmember's motive also problematically echoes the more general Santa Cruz decorum policy, which by its written terms is viewpoint-based in its prohibition of any "language [by a member of the public] tending to bring the Council or any Councilmember into contempt."

Thus, even if Norse did "intend to support" the disruption, such intended support of the disruptors does not appear to have been the motivation for his ejection. At a minimum, that is a factual question on which Norse should have been entitled to a trial.

Even Assuming It Was True that Norse Intended to Support and Further the Disruption that Had Occurred, What About the Fact that His Actions Carried No Significant Risk of Further Disruption?

That brings us to the third, and most interesting, question raised by the majority opinion. Suppose Norse did "intend to support and further the disruption." And suppose further (which seems unlikely) that the City Councilmember who escalated the incident and caused Norse's ejection did so because Norse had such an intent. So what? As Judge Tashima argued (and the majority never disputed), there is no way anyone could conclude without a trial (or in our view even with a trial) that Norse's conduct was, in fact, itself disruptive.

We are confronted, then, with the following question: Can a city council evict a speaker whose expression is intended to cause or further a disruption, but which in fact does not create or advance one? Can, in other words, the city punish "attempted furtherance of a disruption" the same way it can (and does) punish actual disruption?

It is not hard to imagine scenarios in which this kind of situation would raise interesting and challenging issues. Some types of expression may fall outside the First Amendment whether or not the expression brings about the harm society is trying to avoid in banning the expression. So, for example, an "attempted threat" -- where someone intends to threaten another by a phone call, but ends up dialing a wrong number, so that the listener never hears the threatening message -- might be punishable just as completed threats are.

Or imagine that Norse had intended and attempted to disrupt the meeting by talking into a megaphone while the City Council members were speaking, only to find out that the switch on his megaphone was broken. In that instance, perhaps he could be punished for what he intended and attempted.

An Analogy: The Crime of Incitement

But note that in both of the circumstances described above, the speech that was uttered (or intended to be uttered) was itself harmful or disruptive. In Norse's actual case, his salute was not inherently disruptive or injurious to the functioning of the Council. (Indeed, no one has even tried to argue that it was.) Instead, what, according to the Ninth Circuit, makes his actions punishable is their intended effect in encouraging other people to act in a disruptive way.

That is significant, for speech that creates harm in and of itself may be quite different than speech that creates harm only when it influences others to act in undesirable ways. Norse's alleged wrongdoing, if it is wrongdoing at all, must be based on his soliciting or encouraging the disruptive conduct of others.

The closest analogy in the case law to this kind of a wrongdoing concerns the crime of "incitement" -- that is, expression that is punishable because it may cause others to commit acts of violence or other unlawful deeds. Importantly, in the incitement context, the Supreme Court has made clear that the First Amendment places limits on what government may proscribe. In particular, the First Amendment requires the government to show both that the speaker intends others to act (unlawfully and imminently) on his words, and that the speech "is likely to incite or produce such action," before the speech may be punished.

In Norse's case, the Ninth Circuit never even suggested, let alone demonstrated, that Norse's salute, even if "intended" to further the disruption, was remotely likely in fact to generate more disruption. Indeed, no such suggestion would be tenable, since the people responsible for the disruption had already left the room and/or the podium at the time of the salute.

In this context, then, if Norse did intend to "support" or "further" the disruption, then his support was more abstract than inciting. And if an actual likelihood of another person acting is required by the First Amendment in the incitement context -- where the incited conduct can involve violence that is much more serious than disruption of a city council meeting -- it would seem odd at the very least that the First Amendment standard for allowing punishment could be any lower in Norse's situation.

At a minimum, the Ninth Circuit opinion needed to engage in some kind of careful analysis to support its seemingly new and more government-friendly rule here. Disappointingly, it did not. But as we all know, when your main focus is to swat a (gad)fly, you can make a mess if you're not careful.


Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.

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