In the usually decorous environs of a full federal appeals court hearing, 11 black-robed judges Tuesday provoked surprised laughter as they debated whether an activist's Nazi salute to the mayor of Santa Cruz was an act of free speech or a disruption of public order.
"It's OK to give the finger to a police officer," Judge Stephen Reinhardt noted helpfully, citing a previous ruling within the U.S. 9th Circuit Court of Appeals.
Judge M. Margaret McKeown asked the Santa Cruz city attorney if boisterous positive expressions — mugging gleefully and pumping two thumbs up — at City Council meetings would also violate the rules of order.
"Is smiling OK?" Chief Judge Alex Kozinski asked with palpable sarcasm, one of many questions from the judges that hinted at concern about the constitutionality of Santa Cruz's policies that led to the eviction and arrest of homeless rights activist Robert Norse eight years ago. Norse has been fighting the city on 1st Amendment grounds ever since.
The judges, meeting in the formal en banc session in Pasadena, pondered whether use of an obscenity in a public forum would be grounds for ousting the speaker, whether showing disrespect for an official's race or gender would be more offensive than Norse's silent salute, and what case law exists protecting or proscribing a "heckler's veto."
"When does a Nazi salute move into unprotected territory?" Judge Raymond C. Fisher asked Santa Cruz City Atty. George Kovacevich. The judge said he was concerned about the city's claim to unlimited discretion in controlling expression at public meetings.
"This is a democracy," Fisher reminded the city attorney.
Kovacevich parried a barrage of hypotheticals about what behavior and speech would be permissible at what times and places during public gatherings, eventually conceding that negative expressions tend to rile city officials more than supportive ones. That prompted Kozinski, a libertarian stickler on individual rights and freedoms, to warn the lawyer that "You're digging yourself in deeper." That was widely seen as a hint at the ruling the court will issue months from now.
In making his point about speakers' rights versus spectators' rights, Kovacevich unintentionally unleashed hilarity in the courtroom, especially among the judges.
Arguing that the citizen at the lectern during a public hearing can say whatever he or she wants during the allotted time, he said Norse's offense was making his gesture of contempt from the sidelines.
"If I thought you guys as a court were too liberal," Kovacevich said by way of example on a speaker's latitude to be offensive, evoking the actual impression many conservatives have of the 9th Circuit, "if I called you SOBs, and MFs and liberal idiots, you might not look disrupted but .... "
"We might be honored," McKeown chimed in, to general merriment.
"Maybe I'm making this argument before the wrong court," Kovacevich replied, not as amused as the rest of the courtroom.
Seven of the 11 judges hearing the case of Norse vs. City of Santa Cruz were appointed by Democratic presidents. But even some of the Republican appointees known to chafe under the 9th Circuit's liberal image took issue with procedural aspects of the case, which has been moving up and down the federal court ladder since the March 12, 2002, council meeting.
"These guys really nailed them on it," Kate Wells, an attorney for Norse, said of the judges' questions to Kovacevich that were replete with concern that the public meeting rules were aimed at stifling dissenting views as much as maintaining order. "They think we have to sit with our hands in our laps."
Norse, an activist with Homeless United for Friendship and Freedom who has been challenging the city's restrictions on where the homeless can sleep, said he expects Santa Cruz to petition the U.S. Supreme Court for review if the 9th Circuit decides that his free speech rights were violated.
The high court has a conservative majority — and a track record of overturning a large percentage of 9th Circuit opinions.