To the City Council in Santa Cruz, Calif., Robert Norse was a pest long before he sued it. An old-fashioned (and full-time) activist, he championed the city’s homeless and showed up regularly at meetings, making cranky comments and daring members to lose their cool.
Which they did, in March 2002, in an incident viewable on YouTube. As a gesture of silent protest when the Council asked someone else to stop talking, Mr. Norse raised his left arm in a Nazi salute. He was thrown out of the meeting, arrested when he refused to leave and released without charges. Mr. Norse then sued the city and Council members for infringing on his First Amendment right to sound off. But, on the eve of the trial and on his own motion, the trial judge threw out the case because, he said, the people Mr. Norse sued had official immunity.
On Dec. 15, the United States Court of Appeals for the Ninth Circuit unanimously sided with Mr. Norse. In a tart and persuasive opinion, Judge Sidney Thomas said that in ruling on his own motion — sua sponte — and without adequate notice, the trial judge had not given Mr. Norse a fair chance to be heard and had thus abused the legal process.
He also made plain that even a guy who’s a pest can count on the protections of the First Amendment. It’s all right to set reasonable time limits on public comments, Judge Thomas said. But if you have a right to be in a place, the right to free speech comes with you.
As the Ninth Circuit’s chief judge, Alex Kozinski, wrote in a concurring opinion about what he saw on the YouTube video, it “clearly shows that Norse’s sieg heil was momentary and casual, causing no disruption whatsoever.” Mr. Norse is not the only beneficiary of the appellate court ruling. All of us who value free speech, even when it is obnoxious, are stronger for it.
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Ed's note:
To read the decision for yourself, including Chief Judge Alex Kozinski's wonderful concurring opinion, please see:
http://www.ca9.uscourts.gov/datastore/opinions/2010/12/15/07-15814.pdf
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