Robert Norse’s Nazi salute was certainly a show-stopper at the March 12, 2002, meeting of the Santa Cruz City Council in California.
That got Norse ejected from the meeting by the council’s sergeant-at-arms and arrested. Two weeks later, Norse was in federal court suing Santa Cruz for violating his First Amendment rights.
Now, Norse is no Nazi.
In fact, he told The Santa Cruz Sentinel that he abhors everything Nazis stand for. Norse explained that he was simply miffed that then-Mayor Christopher Krohn was cutting off a speaker who was criticizing the council. His Nazi salute was a way of making the point that Krohn was acting a bit dictatorial.
The other side of the story is that Norse is a bit of a gadfly in his advocacy for the rights of the homeless. He doesn’t like the city’s overnight camping ban and its stance against aggressive panhandling. Norse likes to voice his objections whenever he gets the chance, so it’s safe to say the members of the Santa Cruz City Council are pretty tired of his act.
In defending against Norse’s civil rights lawsuit, Santa Cruz contended that his Nazi salute violated the city council’s decorum policy and justified his removal from the meeting.
U.S. District Court Judge Ronald Whyte in San Jose thought about as much of Norse’s lawsuit as I do about most §1983 lawsuits, so he summarily dismissed the case after watching a five-minute video from the meeting showing Norse’s salute and arrest.
You might not think that this kind of local kerfuffle would grab the attention of all the judges on 9th Circuit, but you’d be wrong.
Yesterday, the en banc court decided that Judge Whyte was a bit too hasty in clearing Norse’s case from his docket.
The court explained that sua sponte grants of summary judgment like the one in Norse’s case are appropriate only “if the losing party has reasonable notice that the sufficiency of his or her claim will be in issue.”
This Norse did not have, so he gets another day in court to bring in witnesses to testify that his Nazi salute was not actually disruptive of the city council meeting.
And Judge Whyte will need to be mindful that the judges of the 9th Circuit don’t see Norse’s lawsuit as a frivolous one.
The gist of Santa Cruz’s defense is that city council meetings are limited public forums, subject to viewpoint neutral time, place, and manner restrictions of speech. Norse made his Nazi salute after the period for public comment had ended, so he was subject to being frog-marched from the meeting.
The 9th Circuit explained that it is not all that simple.
“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. …
“[T]he 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 court said.
The court concluded that “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.” (Norse v. Santa Cruz)
So Robert Norse, you get another shot to make your case. But please take this bit of advice to heart: Don’t roll out the old Nazi salute should you happen to get flustered with the way Judge Whyte is conducting some future courtroom hearing.
No, I can guarantee you that that wouldn’t go over well with the judge.
– Pat Murphy