I’m sure plenty of you face this tough question on a daily basis. I wondered the exact thing when I read an article on law.com this morning about a guy who Nazi saluted the mayor at a city council meeting.
It ends up that his salute was not the most prudent of actions, as he was promptly removed. Ironically, he was arrested in California. It was there that the famous free speech case, Cohen v. California, was decided in 1971. If I can recall from a very sleepy, crossword-filled constitutional law class [again, ironically, I scored perfectly on my con law Bar exam essay], Cohen was a guy who was against the Vietnam war. He wore a jacket into a courthouse that said “Fuck the Draft” and was arrested for a criminal offense. He was sentenced to 30 days incarceration. The Supreme Court held, basically, that “one man’s vulgarity is another’s lyric.” A society with open discourse will hear foul words as a side effect. The Court noted that although “fighting words” can be regulated, no one could construe Cohen’s jacket as a personal attack.
In the instant case, a man performed the Nazi salute to the mayor despite disagreeing with Nazi viewpoints. He saluted in response the mayor cutting off a speaker that expressed criticism of council. Originally, a 3 judge panel for the 9th U.S Circuit Court of Appeals held for the city. In rare form, a majority of the 26 active judges opted to rehear the case en banc with an 11 judge panel. Many people speculate that this case will make it to the Supreme Court, which frequently occurs when a circuit court hears a case en banc.
In my view, his behavior was completely constitution, albeit lacking in taste. It seems like the reason for his removal was the subject matter of his dissent. The city argues that he was removed because his behavior was disruptive. However, it could not have been too disruptive, since the mayor did not notice the salute. Instead, someone pointed it out to him. Then, he evicted Norse from the meeting. A video clip of the incident shows that the salute lasted about 5 seconds.
Interestingly, city council rules permit holding up signs. How is a salute anymore disruptive than a sign?
This is the guy…he makes a good image of dissent, does he not?