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Federal appeals court debates whether a Nazi salute is free speech

June 22, 2010 |  1:37 pm

In the rarified atmosphere of a full federal appeals court hearing Tuesday, 11 black-robed judges debated whether an activist's Nazi salute to the mayor of Santa Cruz was an act of free speech or an illegal disruption of public order.

"It's OK to give the finger to a police officer," Judge Stephen Reinhardt noted, 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 among those at city council meetings would also violate the rules of order, mugging gleefully and giving two thumbs up as an example of the "way-to-go" gestures she was talking about.

"Is smiling OK?" Chief Judge Alex Kozinski asked, in reference the Santa Cruz 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 highly decorous en banc forum in Pasadena, pondered whether use of the F-word in a public forum would be grounds for ousting the speaker, whether showing disrespect for a mayor's race or gender would be more offensive than Norse's behavior and what case law exists protecting or proscribing a "heckler's veto."

After the attorney for Santa Cruz, George Kovacevich, sought to explain why negative comments and gestures tend to rile city officials more than those in favor, Kozinski, a libertarian stickler on 1st Amendment issues, seemed to hint at the ruling the court will issue months from now when he warned him, "You're digging yourself in deeper."

-- Carol Williams