Case Note: Constitutional Law - Free Speech - Ninth Circuit Upholds City Council's Ejection of Audience Member Based on Nazi Salute Norse v. City of Santa Cruz

An irony of American free speech law is that it provides more protec­tion for ranting on a street corner than speaking out at a public meeting. This is partly a quirk of the United States Supreme Court’s complicated First Amendment jurisprudence and partly a recognition that such meetings are venues for administrative business and not just citizen engagement. And yet all across the country, city councils, school boards, planning commis­sions, and other public bodies provide time for members of the public to speak at their meetings. Sometimes the comments are relevant and persua­sive, sometimes no one from the public shows up, and sometimes officials are besieged by hostile gadflies who seize the platform to create a spectacle. Officials concerned about such abuse are allowed to quiet speakers if their comments would derail a meeting. However, such power is limited to quelling speech that is disruptive, not merely disfavored.

Not surprisingly, judges and local officials have struggled to draw this fine distinction, as exemplified by the recent Ninth Circuit opinion, Norse v. City of Santa Cruz.^[1] In Norse, a divided panel held that city officials did not violate a citizen’s First Amendment rights by ejecting him from two municipal meetings—one in which he paraded around the city council cham­bers in protest and another in which he silently gave a Nazi-style salute.^[2] The majority found both ejections acceptable, although the panel was split on the silent salute. A dissenting judge deemed that ejection to be imper­mis­sible viewpoint discrimination.^[3] The Ninth Circuit announced on March 12 that it would rehear the case en banc, setting the stage for an impor­tant reexamination of the law governing citizen speech at public meetings.^[4]

The majority opinion in Norse turned an exception aimed at containing truly disruptive speech into a broad loophole that could give officials latitude to punish speakers because of their views. By expanding the definition of “disruptive,” the court suggested that avoiding mere affronts to decorum can constitute a compelling state interest that justifies silencing political speech. This logic runs against well-established First Amendment principles. The case also shows how the doctrinal framework for analyzing speech at public proceedings is grounded in antiquated notions about where valued speech takes place, obscuring modern realities about political engagement.

Citizen speech at public meetings is typically analyzed under public forum principles, which apply when officials regulate speech in government-controlled locations. Since the 1980s, the most important question in public forum cases is the nature of the forum.^[5] The Supreme Court has created a sys­tem of categorical rules in which different levels of constitutional scrutiny are applied depending on how a location is labeled. Speech gets the most protec­tion in a “traditional public forum” like a street corner or a park and the least protection in a “nonpublic forum” like a military base. Somewhere in between is a “limited public forum” like public school facilities. Courts decide which label to use by looking to “society’s time-tested judgment, expressed through acqui­es­cence in a continuing practice.”^[6] This categorical approach has led to criti­cism from commentators who would rather see the courts weigh the particu­lar speech and governmental interests at stake in a given case.^[7]

Public forum doctrine relies heavily on history and tradition. A location is deemed a “traditional public forum” or a “general public forum” and given the highest level of First Amendment protection when it has “immemorially been held in trust for the use of the public, and, time out of mind, [has] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”^[8] Strict scrutiny applies to any content-based speech restriction in these locations.^[9] At the opposite end of the spectrum is the “nonpub­lic forum.” There is no tradition of speech in nonpublic forums, and the government has not opened them up to expressive activity.^[10] Speech restric­tions in such locales are held to the minimum standard of constitu­tional review: they need only be reasonable and viewpoint neutral.^[11]

In the middle of the spectrum are places that the government makes available only to certain speakers. For example, a public university can open its facilities for expressive activity by student groups only, and a city can operate a venue exclusively for theatrical productions.^[12] Courts have called such sites “limited public forums” or “designated public forums.” If the gov­ernment has provided one of these sites for open-ended expressive activity, then content restrictions are analyzed under strict scrutiny.^[13] However, if the government has reserved the site for a particular kind of speech, then it can impose reasonable content-based restrictions, as long as these restrictions remain viewpoint neutral.^[14] Across all of these categories, the government can impose reasonable “time, place and manner” restrictions on speakers that do not relate to the content or viewpoint of the speech.^[15]

Despite these bright line rules based on the type of location, it remains unclear where exactly citizen speech at public meetings fits. The Supreme Court has held that a government body can entirely exclude public speakers from participating in meetings without violating the Constitution.^[16] Once offi­cials provide an opportunity for public comment, some First Amendment scru­tiny applies to any subsequent limitations, although confusion abounds as to the proper standard. Courts have expressed frustration about this lack of clar­ity, and many have simply declined to pick a category.^[17] Nonetheless, the broad principles behind public forum doctrine have almost always guided the resolution of cases dealing with citizen speech at public meetings.

In City of Madison Joint School District v. Wisconsin Employment Relations Commission,^[18] the Supreme Court struck down a state policy that prohibited teachers who were not official representatives of the teachers’ union from speaking at school board meetings.^[19] The Court held that when the panel “sits in public meetings to conduct public business and hear the views of citi­zens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech.”^[20] Even though this deci­sion predated the establishment of the categorical public forum rules and terminol­ogy, Justice Brennan suggested in a concurring opinion that public comment at a school board meeting or a comparable proceeding would be analyzed under the category of “designated public forum.” He wrote: “[o]nce a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.”^[21]

When subsequent courts addressing citizen speech at public meetings have picked a category, however, they have tended to use the “limited public forum” label, which allows for some content-based discrimination.^[22] In White v. City of Norwalk,^[23] the Ninth Circuit considered a challenge by a citizen who was ejected from city council meetings for refusing to stop talking after council members ruled him out of order for being unduly repetitive.^[24] The court cited the Supreme Court’s language in Wisconsin Public Employment Relations Commission in suggesting that speech in public meetings must be given strong protection, but then it noted countervailing concerns about the efficient admini­stration of municipal business: “[A] City Council meeting is still . . . a governmental process with a governmental purpose. The Council has an agenda to be addressed and dealt with.”^[25] Therefore, the court held that certain content-based restrictions, such as those limiting public com­ment to the agenda item at hand, do not violate the First Amendment and that speakers can be cut off for being repetitious or irrelevant as long as they are not targeted because officials disagree with their views.^[26]

A subsequent Ninth Circuit case, Kindt v. Santa Monica Rent Control Board,^[27] concerned a citizen’s challenge to an elected municipal rent con­trol board ejecting him from several public meetings. The court suggested in dicta that due to their “highly structured nature,” public meetings of city councils and other such municipal boards “fit more neatly into the nonpublic forum niche.”^[28] However, the court declined to precisely label the forum and merely held that “limitations on speech at those meetings must be reasonable and viewpoint neutral, but that is all they need to be.”^[29]

The Ninth Circuit’s decisions in White and Kindt provided the prece­dential and analytical foundation for the opinion in Norse v. City of Santa Cruz. The petitioner, Robert Norse, is an activist with a long history of clashing with city officials.^[30] The litigation involved two incidents in which he was ejected from city council meetings. The first occurred at a conten­tious proceeding in 2002, in which two other audience members had already created a disruption in the back of the chambers.^[31] As presiding officer at the meeting, the mayor then told a member of the public who was speaking dur­ing an open comment period that her time had elapsed. As a result, the speaker was “visibly unhappy,” and Norse “directed a Nazi salute in the presiding officer’s direc­tion.”^[32] Though the mayor did not notice the gesture, Norse was ejected after another council member pointed it out.^[33] A second inci­dent came in 2004 when Norse was kicked out of a meeting after he “engaged in a parade about the Council chambers” in protest.^[34] He brought a civil rights lawsuit under 42 U.S.C. § 1983, contending that the city’s actions violated his First and Fourth Amendment rights.

The district court dismissed Norse’s complaint, but in 2004, a Ninth Circuit panel ruled 2–1 that Norse had stated a claim that his First Amendment rights were violated when he was ejected based on the salute.^[35] The district court ruled against Norse on remand, and this time, with the benefit of a more complete record including video of the meeting, the same Ninth Circuit panel upheld the decision by ruling 2–1 in favor of the city.^[36] The opinion does not attempt to locate the city council meeting on the public forum spectrum, finding only that it does not fall in the most protected category. Writing for the majority, Judge Mary M. Schroeder followed White and Kindt and noted that “[w]e have long recognized that First Amendment rights of expression are more limited during a meeting than in a public forum, as, for example, a street corner.”^[37] The majority found that, based on the record, Norse’s salute was in direct protest of the mayor enforcing reasonable time, place, and manner limitations aimed at preventing the disruption of the meeting’s offi­cial business.^[38] Therefore, ejecting him for the gesture was not viewpoint discrimi­na­tion but rather the type of content-based regulation acceptable in such contexts.^[39] The majority stressed that the real-time inter­pre­tation and enforcement of such rules during meetings are “highly discre­tionary func­tions” in which deference to public officials is appropriate.^[40]

Judge A. Wallace Tashima concurred in the portion of the opinion relat­ing to the parading incident, finding it to be disruptive as a matter of uncon­tro­verted fact, but he dissented regarding the saluting incident.^[41] Judge Tashima found that the facts supported an inference that the officials ejected Norse because they disliked the viewpoint he expressed with his Nazi salute, not because he was disrupting the meeting. He noted that Norse remained totally silent as he saluted for “a second or two” and that no one in the audi­ence reacted; indeed, the mayor himself did not notice the gesture and carried on with the next items on the council agenda.^[42]

Under Santa Cruz City Council rules, audience members were allowed to display signs or engage in other silent expression that did not block others’ view, which suggested that Norse’s conduct fell within city policy.^[43] The dissent further noted that there was a history of conflict between Norse and council members over his use of the Nazi salute and that evidence in the record suggested the mayor initiated the ejection at the behest of “an offended council member.”^[44] Judge Tashima also objected to the majority’s suggestion that the ejection was appropriate because the salute was intended to object to a reasonable time limitation and not express a political viewpoint. Citing Supreme Court cases that establish that the government cannot limit speech based on hypothetical disruptions caused by listeners, Judge Tashima found Norse’s intent to be irrelevant.^[45] Given that Norse appeared to comply with city rules and did not cause a disruption, the dissenting opinion concluded that the record suggested “that Norse was removed because of his viewpoint—because Council members detested being characterized as acting Nazi-like.”^[46]

Neither the majority nor the dissent defined “disruption” or said precisely where they would set the threshold for determining when cutting off a speaker is constitutionally permissible. Indeed, it is difficult to find a clear statement of how disruptive one needs to be in order to be silenced in previ­ous cases regarding public meeting speech.^[47] The Fourth Circuit did note in the recent case Steinburg v. Chesterfield County Planning Commission^[48] that “disrup­tion . . . is of course not confined to raw, physical violence, but includes any conduct that significantly violates generally or specially established rules of parliamentary order” such that the “orderly conduct of a meeting” is harmed.^[49]

White and Kindt seem to have followed this definition by upholding ejec­tions based on speakers going off topic, being unduly repetitive, yelling, or refus­ing to stop speaking after their allotted time expired.^[50] This type of speech can plausibly be said to cause actual disruption of a meeting by creat­ing delays, blocking other speakers from being heard, and preventing the panel from addressing agenda items.

However, the majority in Norse went further by upholding a speech restric­tion without a claim that the meeting was delayed or the council was prevented from conducting business. Rather, the majority suggested that speech that supports or fosters a potential disruption can justify an ejection even if the meeting has yet to be interrupted.^[51] In contrast, the dissent appar­ently would require actual interference with the conducting of the meeting or the audi­ence’s ability to follow the proceedings.^[52] Under the majority’s approach, some precau­tionary measures are necessary because a strict actual disruption standard waits until the damage has already been done before tak­ing action. Essen­tially, defining a disruption broadly or narrowly involves making a choice between jumping in too early or too late, and ensuring the smooth flow of government business argues for giving officials the flexibility to cut off speakers before the meeting is disrupted.

A problem with this approach is that it views disruptions as all-or-nothing propositions rather than as matters of degree. If a meeting were ruined the moment disruptive words were uttered, then perhaps preventative silenc­ing would be justified. In practice, however, officials can usually bounce back from disruptive speech and return to the agenda after enforcing the rules. Some time may be lost, but losing a few minutes during a meeting is preferable to a preventative policy that requires officials to speculate about what members of the public are going to say and do, providing too much leeway to silence contrary views.

The public forum doctrine is designed to balance free speech rights with the government’s ability to ensure that a site is being used for its proper purpose. At public meetings, officials must exchange information with one another and take votes. For the majority of jurisdictions that have opened their meetings to public comment, however, an additional purpose is interac­tion with the public. The meetings provide an opportunity for citizens to express themselves about pertinent issues and to help officials make their decisions. Citizens’ free speech is not just a factor to be balanced against the governmen­tal interest, but it is itself an integral part of the governmental interest. Officials should be allowed to ensure that speech at public meetings is relevant to the affairs of the jurisdiction and the agenda item at hand. Beyond that, however, governmental restrictions on expression at public meetings should be limited to reasonable time, place, and manner (TPM) rules. And the most important of these TPM limits is the prohibition on speech that disrupts a meeting.

The Norse opinion could lead to a very broad interpretation of “disrup­tion.” In arguing that city officials did not engage in viewpoint discrimina­tion, the majority found that Norse’s Nazi salute was protesting only one thing: the mayor’s enforcement of the time limits for public comment. According to the majority, officials can eject someone from a public meeting for showing disagreement with procedural rules even if the demonstration of disagreement does not impede the meeting. As mentioned earlier, Norse’s silent, one-to-two second gesture did not lead to any reaction among the audi­ence, and the mayor himself continued on with the agenda without notic­ing it. Even accepting that Norse’s Nazi salute was exclusively aimed at the time limit and not indicative of any other political disagreement, the council ejected him because of the idea that the gesture expressed and not any tangible disruptive effect.

The decision’s implication that disruption encompasses affronts to decorum as well as tangible hindrances of official business is troubling. The majority quotes the district court, which found that after the mayor was alerted to the gesture he was “suddenly faced with a meeting that had been interrupted by an offended council member.”^[53] According to press reports, the coun­cilman interrupted the mayor and demanded action because he said the Nazi salute insulted the “dignity of the body.”^[54] The majority’s concep­tion of disruption thus appears to encompass harm to an official’s dignity since any tangible disruption to the city council’s ability to function resulted from offi­cials taking offense rather than from the speech itself.

Under this approach, speech can be curtailed either because it is personally offensive to a government official or because of a prediction that the meeting will be disrupted by the action an official takes after being offended. The latter reason relies on speculation and makes the speaker liable for the behavior of a listener. The former reason runs against a strong tradition in American jurisprudence that assures that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”^[55] This principle that offensiveness is not a sufficient ground for silencing political speech was reinforced in Cohen v. California,^[56] in which the Court overturned the disturbing the peace conviction of a man who wore a jacket reading “Fuck the Draft” in a corridor outside of a courtroom. The fact that others might have seen the jacket and been offended was not enough to criminalize the speech in the absence of an actual disruption.^[57] For the government to “shut off discourse solely to protect others from hearing it” in the absence of “a showing that substantial privacy interests are being invaded in an essentially intolerable manner . . . would effectively empower a majority to silence dissidents simply as a matter of personal predilections.”^[58]

The Sixth Circuit recently applied these principles to a public meeting situation in Leonard v. Robinson.^[59] A panel ruled in favor of a citizen arrested for saying “god damn” while addressing a local township board meeting.^[60] Even though a township supervisor apparently took offense at the speaker’s using “the Lord’s name in vain,” the court found that the speech was not suf­ficiently disruptive to justify curtailment.^[61] The Leonard court gave the proper weight to the role of the public meeting as a forum for interaction between citizen and government, noting that “[e]ven those who advocate the most narrow interpretation of the freedom of speech agree that in a democ­ratic forum like a township meeting, the state should abstain from regulating speech.”^[62]

This line of cases suggests that the Santa Cruz City Council should not have been able to eject Norse because his salute offended a council member. Similarly, the fact that other audience members might have taken offense should not be enough to suppress Norse’s speech. The interests of courthouse decorum were not enough to outweigh the First Amendment concerns in Cohen even though judges have traditionally had great leeway to enforce such rules.^[63] Like those entering courtrooms, people attending a city council meeting are entering into a public place where some discussion of political issues, perhaps even some heated and offensive discussion, is expected.^[64] Jurisdictions have other, less-intrusive remedies available to try to shield members of the public from offensive speech, such as posting warnings and disclaimers. They can also place general comment periods at the end of meetings so spectators interested in a particular agenda item could leave before the floor is opened up for more open-ended and potentially offensive speech.^[65]

The Norse case also suggests that the current iteration of the public forum doctrine may be a poor fit for the regulation of restrictions on citizen speech in public meetings. When the Supreme Court began developing the doctrine in the 1930s and 1940s, it used a historical analysis to make sure that citizens were not prohibited from passing out leaflets, making speeches, or orga­nizing parades on public streets, on sidewalks, or in parks.^[66] The language from those early cases about such venues being “immemorially” considered proper places for public debate^[67] provides a strong basis for protecting expres­sive activities but is a flawed rationale for denying First Amendment protec­tion to citizens at public meetings. The Norse majority’s statement that courts “have long recognized that First Amendment rights of expression are more limited during a meeting than in a public forum, as, for example, a street corner,” seems counterintuitive.^[68]

Streets, sidewalks, and parks have traditionally been venues for speech, but using these venues for expressive activities has always been ancillary to the primary functions of promoting traffic and pedestrian flow and providing recreational space. In contrast, the free speech purpose of public meetings with citizen comment periods is inextricably linked to the government busi­ness interest. In City of Madison Joint School District v. Wisconsin Employment Relations Commission,^[69] the Supreme Court recognized the dual function of such public meetings “to conduct public business and hear the views of citi­zens.”^[70] Moreover, the latter role of public meetings is arguably more impor­tant than it has ever been. Government observers widely believe that the growing influx of campaign money and lobbying in municipal government has created alienation and apathy by making it more difficult for ordinary citizens to participate in local politics.^[71] For those who cannot afford cam­paign contributions or lobbyists, public meetings may be the only opportunity to speak face-to-face to elected officials and to try to influence their votes on matters of pressing importance. This modern reality of political engagement in American cities should take precedence over any sense that public meetings lack the same historical foun­dation as sidewalks and parks as venues for core political speech.

Finally, the policy rationale at work in decisions such as Norse likely goes beyond raw legal doctrine. As courts have moved away from the Supreme Court’s Wisconsin Public Employment Relations Commission decision and approved widespread content-based restrictions on citizen speech at public meetings, judges surely must be motivated at least in part by concern for the local offi­cials who preside over these affairs. Unlike judges’ tight control of courtroom proceedings, it is customary for local government meetings to include a wide range of commentary from members of the public.^[72] Those who show up to take advantage of such openness tend not to be ordinary citizens engaged in a par­ticu­lar issue but city hall fixtures enraged about every issue. Their comments can be insightful but are just as often rambling, profane, or cruel. Indeed, the city hall gadfly has become a familiar archetype.^[73]

Even when they are rational, these speakers can be irritating to public officials, but activists like Norse escalate the level of confrontation and offen­siveness. In addition, Norse’s Nazi salute is far from an isolated incident. In Dallas, attendees who comment regularly at council meetings yell about “police brutality, sex, drugs, Satan, the Ku Klux Klan and a host of other dis­parate topics.”^[74] In Los Angeles, a group of street vendors and performers disgruntled over a city ordinance began attending council meetings in mid-2006 and seized nearly every public comment opportunity to rant, sing, dance, shout, and use ethnic slurs; this behavior prompted the city to adopt a new speech ordinance.^[75] Some of those same gadflies still speak at nearly every meeting, and one of them recently showed up to the podium in full Ku Klux Klan regalia, prompting so many council members to walk out of the chambers that a quorum was lost, and the meeting was cancelled.^[76] Three years after revising its public comment rules, Los Angeles adopted yet another ordinance.^[77]

In light of this pattern of abuse of public comment periods, it is understandable that local officials want to use legal tools to keep their meetings from deteriorating into profane shouting matches. The courts have mostly been accommodating. They have shown deference to local officials by allowing viewpoint-neutral restrictions when speech is actually disruptive and using public forum doctrine to balance citizen expression with governmental efficiency. However, when courts show too much deference to local officials and allow “disruption” to be read too broadly, the balance is upset and core political speech is jeopardized. The Ninth Circuit’s decision to rehear the Norse case en banc is an opportunity to restore the balance and bring clarity to this important area of First Amendment law.