SANTA CRUZ., Calif. -- In an effort to give government leaders greater authority to control public meetings, the city of Santa Cruz has urged the U.S. Supreme Court to hear an appeal of a free-speech case brought by a persistent City Council critic who was arrested after making a Nazi salute and refusing to leave.
Lawyers for the city argue in a petition filed with the nation's highest court this week that officials nationwide need better guidance on limitations for maintaining order during public proceedings. The city notes that courts do not tolerate "hate gestures" similar to the one made by Robert Norse -- who claims his ejection from a March 2002 council meeting violated the First Amendment -- and therefore cities shouldn't have to, either.
"Petitioners have litigated this case for almost 10 years in the hope of securing judicial recognition that the broad protections of the First Amendment do not extend to hate gestures made during a city council meeting," the filing says.
The essential question facing the court is whether the Nazi salute is protected speech if it disrupts a public proceeding.
Norse, 63, a resident of Santa Cruz and Felton, Calif., said the appeal, formally called a petition for a writ of certiorari, demonstrates city leaders are "thin-skinned and thick-walleted." He said, "They want the power to intimidate critics that are clearly not being disruptive."
The longtime advocate for the homeless has repeatedly offered to drop the suit and undisclosed financial claims, with the exception of legal fees, if the city agrees to reverse an overnight camping ban and loosen restrictions on public comment during meetings. City leaders have rejected the offer, saying the case is worth fighting because Norse has frequently disrupted meetings, including in 2004 when he was ejected again.
Norse made the salute when then Mayor Christopher Krohn cut off a woman speaking after public comment time was finished. Councilman Tim Fitzmaurice alerted Krohn to the gesture, after which Krohn asked Norse to leave. Norse ignored, and Krohn called for a brief recess. Police Sgt. Loran Baker removed and arrested Norse, who was released after 5 1/2 hours in detention and given a citation for disrupting the meeting.
Krohn and Fitzmaurice, who have since left the council, are named along with Baker and other city officials in the federal suit filed two weeks afterward.
Norse has said he doesn't agree with Nazi views and intended only to intimate that council members were acting like Nazis for restricting public comment.
A federal judge dismissed the case after reviewing a video of the incident, and the 9th Circuit Court of Appeal upheld that decision. But a rare panel of the appellate court agreed to rehear the case, ruling in December that Norse was not given a fair opportunity to make his case.
The council agreed in closed session last month to pursue a Supreme Court appeal, and the city hired Richard Ruda, former chief counsel of the State and Local Legal Center in Washington, to prepare the petition.
"What has been lacking up until now is any conclusion, even from the Supreme Court, about the degree to which the First Amendment limits the city's ability to maintain order during the meeting," Ruda of Chevy Chase, Md., said Thursday. "The Supreme Court is the ideal forum to get that question resolved."
But the high court, which hears fewer than 5 percent of cases, is unlikely to take up the Norse case, said Vikram Amar, associate dean for academic affairs and professor of law at the University of California, Davis, School of Law.
"Usually the Supreme Court doesn't like to take cases in which the meaty issue they want to look at is intertwined with process issues," Amar said. "There are two issues involved here: whether Norse had a First Amendment claim and, even if he lacks the claim, whether the processes the district court followed were appropriate. It's not a very clean setting for the court to get at the First Amendment issue."
Amar, who has written several articles about the case for FindLaw.com and clerked for the late Supreme Court Justice Harry Blackmun, said the city's case is weak.
"The disruption was caused by the response to the gesture," Amar said, adding that a ruling for the city could be troublesome for free-speech provisions. "Then anything anyone does could be considered disruptive" if city officials object to it and stop a meeting.
(c) 2011, Santa Cruz Sentinel (Santa Cruz, Calif.).
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