A Californian court is debating whether a Nazi salute is an acceptable expression of free speech or whether it constitutes a public disruption.
Eight years ago, homeless rights activist Robert Norse was at a Santa Cruz City Council meeting when then- Mayor Christopher Krohn denied a woman from speaking, saying the period for public forum had ended. Norse displayed the Nazi salute with his right hand in response, and was asked to leave the room by several councilmen. He refused to do so and was formally arrested and jailed for approximately six hours.
Norse has been fighting the charges ever since, claiming he is protected under the United States’ First Amendment, which guarantees free expression.
The First Amendment has often been tested in American history, and now eleven judges at the 9th U.S. Circuit Court of Appeals are once again debating its limitations. Several judges noted that if it was acceptable to show the middle finger to a police officer, a Nazi salute directed at a politician was no different.
The middle finger, while undoubtedly offensive, does not carry the same historical connotations as the Nazi salute, however. The salute was given to indicate subservience to Adolf Hitler and to glorify Nazi Germany; the raising of the right hand was usually accompanied by the salutation “Heil Hitler.” The salute became a symbol of unity amongst the population and of acquiescence to Hitler’s wartime ideals, which included ethnic cleansing. Today, the greeting is a criminal offence in both Germany and Austria.
This realization forced other questions from the judges such as whether a public citizen could wear a full Nazi uniform, or a Nazi t-shirt, to a council meeting. Furthermore, could Norse have given his salute during the public comment period without facing the same consequences?
George Kovacevich, a lawyer for the city of Santa Cruz, emphasized this latter point, saying that the violation occurred because Norse disobeyed the rules of the meeting, not because of the form of expression itself. He added that even a thumbs-up or thumbs-down gesture could constitute grounds for removal.
Still, the judges weren’t convinced. "Is smiling okay?" asked Chief Judge Alex Kozinski.
Defining the constitutional rights provided by the First Amendment in terms of Nazi behavior harkens back to other court cases such as National Socialist Party of America v. Village of Skokie (1977). In this case, neo-Nazis planned to march in Skokie, Illinois, a community composed of mostly Holocaust survivors at the time. While there were many issues regarding who had the right to assembly, one of the concerns was publicly displaying the swastika. The U.S. Supreme Court ultimately decided that use of the swastika during a public march is a form of free speech and is entitled to First Amendment protections; the swastika was not considered an attempt at “fighting words,” which are prohibited as they intentionally seek to disrupt the peace.
The neo-Nazis did hold three small rallies in the Chicago area the following summer, but none occurred in Skokie. As a result of the Supreme Court case, they had attracted enough public attention and a Skokie rally was seen as redundant.
Incidentally, Norse said he “abhors” the Nazis´ views and wasn’t trying to promote their ideals, but was expressing dissent at the oppressive nature of local government.
The court will issue a written ruling in the near future.
