FREE SPEECH -- Two constitutional law professors conclude what many casual observers might have assumed: that a fleeting, silent Nazi salute as a gesture of rebuke to a city council at a meeting was protected by the First Amendment.  The scholars show where the federal appeals court panel that ruled to the contrary went off the tracks.


Vikram David Amar and Alan Brownstein, professors at the U.C. Davis Law school writing in a comment today in FindLaw, diplomatically call the court's ruling "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 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.

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.

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.
 

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.

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.

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.

Coincidentally, a better example of something approaching unlawful incitement of lawbreaking (although not charged as such) is addressed in another federal appeals court decision published today.