Today, the 9th U.S. Circuit Court of Appeals was set to convene a rare 11-judge panel to consider how thick-skinned and tolerant public officials need to be before they can silence and evict dissenters from meetings.
"It's not about a Nazi salute. It's not about that gesture," said Norse, who has been arrested numerous times for his outspoken support of the homeless, who are highly visible in Santa Cruz. "It's about City Council rules that are becoming more oppressive because they don't want to deal with homeless issues."
Norse said he was protesting what he viewed as the mayor's unfair cutting off of a speaker criticizing the council. Norse said he abhors the Nazis' views.
Santa Cruz city council meetings attract an endless stream of dissenters, gadflies and activists demanding to be heard. In response, the city council enacted rules prohibiting disruptive behavior and imposed time limits on speakers.
"There is an ongoing struggle here to push back on attempts to destroy our meetings," said Santa Cruz Mayor Mike Rotkin. "We wrestle with this all the time. Our goal is to maximize public input."
Rotkin alleges that Norse's salute during a 2002 meeting was part of a concerted effort to disrupt proceedings and was done in support of others that night intent on disrupting the meeting.
"It's not his views that are at issue, I support people's rights to stand up and tells us that we are idiots," Rotkin said.
A three-judge panel of the appeals court sided with the city in a November ruling, which upheld a trial court's decision. But underscoring how contentious the legal issue is, a majority of the 26 active judges on the court voted to rehear the case. Such "en banc" rehearings are rare and often lead to review by the U.S. Supreme Court.
Officials across the country have grappled with this issue for decades, especially when agenda topics are particularly controversial. Most open meeting rules contains prohibitions against disruptive behavior and limit the amount of time speakers can discuss items on the agenda.The question then becomes, what is disruptive?
"There is a line between disruption and discomfort," said University of California, Davis law professor Vikram Amar. "And the bar for disruption has been set too low - the courts have given local governments too much leeway in defining disruption."Last week, the chairman of an Elmhurst, Ill. City Council committee evicted Darlene Heslop from a meeting discussing a lobbying contract for rolling her eyes, pretending to yawn and making funny faces.
Last year, the Virginia Supreme Court upheld a disorderly conduct conviction of Duane Howard, an outspoken gadfly who was removed in handcuffs from a Roanoke City Council meeting in 2005 for yelling "let him speak" during a contentious debate over whether to tear down a historic football stadium.
"In the end it becomes a matter of principle," Roanoke's chief attorney Donald Caldwell said of the city's aggressive defense of Howard's conviction and $100 fine. "Your First Amendment rights are not unlimited and for government to work it has to work in an orderly fashion."
For Norse, his arrest on March 12, 2002 was a culmination of tactics employed by the City Council to silence his outspoken support of the homeless population in Santa Cruz.
The issue is a contentious one in Santa Cruz, pitting downtown merchants and longtime residents against college students and activists who view such city ordinances prohibiting sitting and lying on public sidewalks as draconian overreactions to the highly visible homeless population.Norse's salute and arrest captured in videotape and a federal trial court judge and a three-judge panel of the appeals court relied on the clip to rule in the city's favor.
The five-minute clip shows a frustrated City Council trying to maintain order during a rancorous meeting. At the midway point, the mayor tells a speaker her time has expired and asks her to step away from the lectern. As she leaves, Norse raises his left hand in a Nazi salute in support of the dismissed speaker.The mayor didn't see the salute, but it was brought to his attention by another council member who urged Norse's eviction. When Norse refused the mayor's eviction order he was arrested and charged with disorderly conduct. The charges were later dropped and Norse sued.
"I didn't intend to disrupt the council meeting, it was just a show of dissent," said Norse, who said council rules allow for clapping but not hissing and also authorizes audience members to silently hold up signs. "It's ridiculous that you can hold up signs, but not your hand."