Nazi salute: Is it free speech?

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In the usually decorous environs of a full federal appeals court hearing, 11 black-robed judges Tuesday provoked surprised laughter as they debated whether an activist’s Nazi salute to the mayor of Santa Cruz was an act of free speech or a disruption of public order.

“It’s OK to give the finger to a police officer,” Judge Stephen Reinhardt noted helpfully, 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 — mugging gleefully and pumping two thumbs up — at City Council meetings would also violate the rules of order.

“Is smiling OK?” Chief Judge Alex Kozinski asked with palpable sarcasm, one of many questions from the judges that hinted at concern about the constitutionality of Santa Cruz’s 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.

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