At a city council meeting, a member of the public expressed his frustrations with the proceedings by giving a Nazi salute. It seemed that no one paid much attention to the crank - with the mayor not even noticing. Nevertheless, the major ejected the citizen upon learning of the salute. Constitutional?
Yes, said a split panel from the Ninth Circuit:
In sum, the salute had little to do with the message content of the speaker whose time had expired. Rather, it was a condemnation of the efforts of the Mayor to enforce the rules of the meeting. 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. Officers presiding over public meetings are not required to condone conduct fostering disruptionof a meeting. The district court correctly ruled that the individual defendants were entitled to immunity when they reasonably acted on the belief that disruptive behavior was occurring and was fostered by the Nazi salute.Norse v. City of Santa Cruz, No. 14802, slip op. at 14802 (9th Cir. Nov. 3, 2009) (here).
Judge A. Wallace Tashima properly dissented:
While it is clear under our case law that local public officials conducting public meetings can restrict speech at such meetings according to subject matter, duration, and method, it is equally clear that public officials may not restrict speech according to the viewpoint of the speaker. In order to avoid any constitutional problems, in a prior appeal, we construed the rules of the Santa Cruz City Council “to proscribe only disruptive conduct.” That limitation on what conductthe Council rules proscribe is the law of the case. Yet, the record supports the inference that the Mayor and members of the City Council excluded Norse from the 2002 meeting because they disagreed with the views he expressed by givinghis silent Nazi salute.Slip. op. at 14803 (Tashima, J., dissenting) (citations omitted). This is a case that should have gone to trial:
If the reasonable inferences are drawn in favor of Norse, as should have done in this summary-judgment-like proceeding, Norse was deprived of his First Amendment right silently to protest the Council’s action by his Nazi salute because the Mayor and Council carried out their previously voiced threat— that Norse would be removed from the meeting if he engaged in rendering his Nazi salute again. What’s more, this law has been clearly established for decades. There is nothing ambiguous or “iffy” about this aspect of First Amendmentlaw. No reasonable local public official could believe that he could lawfully remove a member of the public from a public meeting because he found that person’s silent speech to be abhorrent or personally offensive.Id. at 14807-08.