As part of gadfly Robert Norse's protracted free-speech case against
the city, the 11-member panel is examining whether officials had the
right to expel him after he gave them a Nazi salute from the audience.
The judges zeroed in two central questions: Was the provocative
gesture disruptive because of its message or its impromptu timing, which
came after of the period set aside for public comment? And secondly,
should a lower court have given the case a full trial?
The panel could order a new trial or uphold the city's stand that
council members have the right to eject disruptive audience members. The
ruling, which could be months away, has the potential to lead to the
U.S. Supreme Court, which is often the destination of such "en banc"
reviews.
For an hour, judges grilled lawyers for both sides inside a federal
courtroom in Pasadena, where Norse was present. Video of the proceedings
was streamed live to the James R. Browning U.S. Courthouse in San
Francisco.
In what could signal a victory for the 63-year-old Norse, judges were
particularly tough on the city's lawyer, George Kovacevich, asking
whether the Nazi salute would have been permitted if Norse had simply
made it during the public comment period. Judges also asked whether any
gesture made after the permitted time, even a positive one such as a
thumbs-up sign, should be considered out of order.
Kovacevich answered affirmatively, saying, "I'm a purist." However,
he later acknowledged that critical remarks or gestures would naturally
appear more disruptive to council members than positive gestures.
Kovacevich asked the court to sympathize with the council's reaction
to the sensitive nature of the Nazi salute. He asked judges to imagine
if he came before them and said, "I thought you people are too liberal
of a court and I started criticizing you in vulgar language ... if I
called you SOBs and MFs."
"We might be honored," one judge humorously interjected.
"Maybe I'm making the argument in front of the wrong court,"
Kovacevich quipped.
Another judge asked, "The only reason (Norse) is dismissed from the
meeting is because he is on the side of the room, instead of being at
the microphone. It would not have disrupted the meeting if he were
standing at the front during the period of speaking?"
"There are periods of time when no one has the right to speak,"
Kovacevich said.
Norse, who resides in Felton, was buoyed by the panel's robust
attempt to pick apart the city's argument, rather than his own.
"I hope it sends the City Council a message that they can't punish
members of the public that come with dissenting views," Norse said by
phone afterward.
An ardent advocate for the homeless, Norse was arrested in March 2002
after refusing to follow then-Mayor Chris Krohn's order to leave. Norse
said his salute was protected speech meant not to support Nazi
viewpoints but rather that Krohn should not have limited public comment
at the meeting.
A trial judge summarily dismissed Norse's original suit, a decision
upheld by a three-member appellate panel. The en banc panel, which did
not include any of the three original appellate judges, decide to rehear
the case, which has been consolidated with a separate arrest stemming
from a disruption in 2004.
If the city loses, it has to cover the cost of Norse's legal
representation, which exceeds $100,000. The city has also spent at least
$114,000 to fight the Norse's suits.
Given the panel's procedural questions about why the case never got a trial, Kovacevich said after the hearing that it seemed the judges would send the matter back to the trial court, where he believed the city would be victorious. "How can you say that a reasonable council person would think he was violating someone's rights," he said.
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