The Los Angeles City Council last week approved payment of $215,000 to settle a lawsuit brought by a Black man ejected from a public meeting for showing up in, and refusing to doff, a Ku Klux Klan costume. Although it's fair to say that the stunt was done to attract attention and did so, statements by others in the audience at a 2011 meeting of the Board of Recreation and Parks Commissioners showed that they did not consider the meeting to have been disrupted.
But by now presiding officers at such meetings should have been advised that courts have held that actual disruption of the proceedings, not just the offensiveness of the symbolic behavior, is the test for deciding that one can be ejected without transgressing the First Amendment. In other words, although many cities and other local government agencies specify in their protocols that expression can be forbidden or aborted for breaches of "decorum," a meeting such as those governed by the Brown Act is not a court proceeding in which judges have great discretion to preserve the dignity of the occasion.
As Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals observed not long ago in connection with a Santa Cruz resident's ouster from a city council meeting and arrest for using a "Nazi salute" gesture to protest the cutoff of another resident's speech,
It's clear that the council members aren't entitled to qualified immunity. In the Age of YouTube, there's no need to take my word for it: There is a video of the incident that I'm "happy to allow ... to speak for itself." . . .This video (also found in the record) clearly shows that Norse's sieg heil was momentary and casual, causing no disruption whatsoever. It would have remained entirely unnoticed, had a city councilman not interrupted the proceedings to take umbrage and insist that Norse be cast out of the meeting. Councilman Fitzmaurice clearly wants Norse expelled because the "Nazi salute" is "against the dignity of this body and the decorum of this body" and not because of any disruption. But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir.1990).
The Supreme Court long ago explained that "in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Even in a limited public forum like a city council meeting, the First Amendment tightly constrains the government's power; speakers may be removed only if they are actually disruptive.
We've said so twice. In White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990), we explained that speech must "disrupt[,] disturb[ ] or otherwise impede[ ] the orderly conduct of the Council meeting" before the speaker could be removed. Id. at 1426. And in Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266 (9th Cir.1995), we upheld a spectator's ejection from a public meeting only because he was "disrupting the proceedings by yelling and trying to speak when it was not time for" discussion. Id. at 271. Had he been given a chance, Norse could no doubt have presented lots more evidence that he never disrupted the Santa Cruz council meeting, but what would have been the point? The video speaks for itself: Norse raises his hand in a brief, silent protest of the mayor's treatment of another speaker. The mayor ignores Norse's fleeting gesture until Councilman Fitzmaurice throws a hissy fit.
"Listeners' reaction to speech is not a content-neutral basis for regulation.... Speech cannot be ... punished or banned[ ] simply because it might offend a hostile" member of the Santa Cruz City Council. Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 134-35, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). The council members should have known that the government may never suppress viewpoints it doesn't like. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Though defendants point to Norse's reaction to Councilman Fitzmaurice as the "disruption" that warranted carting him off to jail, Norse's calm assertion of his constitutional rights was not the least bit disruptive. The First Amendment would be meaningless if Councilman Fitzmaurice's petty pique justified Norse's arrest and removal.
Norse v. City of Santa Cruz, 629 F. 3d 966, 979 (2010) (Kozinski, J. concurring)