Disorder in the Council Room: Does It Violate the First Amendment to Remove a Citizen from a City Council Meeting for Making a Nazi Salute Gesture?

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, Apr. 27, 2007

One charge often made against President Bush is that his Administration has impermissibly tried to silence critics by, among other things, excluding them from Presidential events and retaliating against them after they speak out. A recent federal case from Santa Cruz, Norse v. City of Santa Cruz, proves that this issue - how thick-skinned officials need to be in a democracy - is one that requires vigilance and balancing at all levels of government.

The Facts and District Court's Reasoning

The basic facts are pretty simple: In 2002, Robert Norse was ejected from the audience at a Santa Cruz City Council meeting after he silently but forcefully raised his arm for one second simulating a Nazi salute. It appears Norse did so to protest the Mayor's decision to cut off a boisterous individual who was speaking during the meeting's public comment period.

Although the Mayor had moved on to other business and thus did not see the salute, a Councilmember interrupted him, told him of the 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 started to challenge the Councilmember's suggestion that he be expelled, and the Mayor immediately told Norse "Please leave." After Norse refused and was arrested, he filed suit contending that the Mayor's action and the subsequent arrest violated the First Amendment.

Federal district judge Ronald Whyte in San Jose dismissed the action, 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 Councilman'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 Councilman. Under these circumstances, Judge Whyte ruled that the Mayor's actions were permissible.

A Vulnerability in the City's Position - The Specter of Viewpoint Discrimination

Judge Whyte's analysis is at least open to serious question, and likely should not survive appeal. The judge conceded that the Councilmember's response to Norse seemed to be driven by the message behind Norse's salute, rather than any disruption that Norse might have caused. But if that is true, certainly the Mayor could not implement his colleague's censorial suggestion merely because the Councilmember's agitation was sincere and was itself impeding the meeting. A mayor cannot bootstrap a Councilmember's protestations of offense into evidence of disruptive behavior to justify ejecting individuals in the audience from the meeting room.

(Imagine, for example, that a Councilmember was intolerant not of criticism but of people of certain racial backgrounds. Surely a Councilmember's sincere distraction at the sight of audience members of certain racial backgrounds could not serve as the kind of "disruption" that would justify removing the citizens from the gallery.)

We note here that Santa Cruz's decorum policy is itself not drawn in viewpoint-neutral terms. (This is relevant because a viewpoint-neutral government policy is far more likely, under First Amendment doctrine, to pass muster than a policy which singles out disfavored points of view for adverse treatment.) The policy explicitly prohibits members of the public from using at meetings any "language tending to bring the Council or any Councilmember into contempt."

This apparent attempt to immunize city officials from disrespect and disdain seems reminiscent of the 1798 Sedition Act passed by Congress to silence political opposition - an Act the Supreme Court famously said in New York Times v. Sullivan had been repudiated by "the court of history."

It is true that the City's decorum policy had already been upheld by the U.S. Court of Appeals for the Ninth Circuit (in an earlier skirmish in Norse's litigation). However, that occurred in the context of a facial challenge. (Facial challenges contend that a given policy is invalid in the lion's share of its applications.)

Even if the City's policy is not facially invalid (and we don't necessarily agree with the Ninth Circuit's less-than-careful holding to that effect), its terms can and should still permissibly inform our assessment of the Council's intent with respect to any particular invocation of the policy in an "as applied" lawsuit - where Norse must prove not that the lion's share of the policy's applications are unconstitutional, but that its single application, to him, was unconstitutional.

Tolerance of Some Distraction is Required by the First Amendment

Moreover, let's suppose that Santa Cruz officials were reacting not to Norse's message, but rather only to the "loudness" of his gesture. Even in that event, we still need to know how much "disruption" the First Amendment requires city officials to tolerate. Government assuredly has more leeway to minimize distractions in a city Council meeting than it would on the street; the need to transact public business in an orderly way explains the permissibility of some decorum rules.

Yet it also seems clear that government cannot prohibit audience speech, even in a Council meeting setting, merely because some Councilmember might be bothered by a citizen's expression. Just as we are disinclined to allow government to restrict an individual's speech, say, at a rally, because an audience member might react violently, we should be reluctant to suppress audience speech because of the reaction of people on the stage: A "heckled's veto" is no less problematic than a "heckler's veto."

The question, then, boils down to how restrained we expect a reasonable elected official to be, when confronted with harsh and potentially distracting attacks in public meetings. Context seems key. How long-lasting, how repetitive, how frenetic a gesture is should affect whether it falls above or below the line of constitutional protection. For example, we have little doubt that had Mr. Norse sat in the audience wearing a T-shirt depicting the Mayor's face with a Hitler mustache on it, such a display, while momentarily eye-catching and caustic to be sure, could not be punished. We think a silent one-second Nazi salute gesture is no more disruptive.

There is a basic balance here. Elected officials exercise power in ways that impose serious costs and burdens on citizens. Part of the price of being granted that authority is having to hear and see the reactions of the individuals who will bear the brunt of those decisions.

While precise boundaries are not easy to draw, we are content to associate ourselves with the words of the late Justice William Brennan: "Preservation of liberty depends in part upon the maintenance of social order. But the First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive."


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. 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 at UC-Davis School of Law.

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