City Council Insolence Can’t Be Criminalized

(CN) - A California town cannot prohibit "insolent" behavior during city council meetings, but the law against disorder or disruption is solid, the 9th Circuit ruled.

Immigrant-rights activist Benito Acosta challenged the law after twice being removed from Costa Mesa City Council meetings where he railed against a 2005 proposal to make the town's police officers enforce federal immigration laws.

Acosta, a founding member of the group Colectivo Tonantizin, was ejected from one meeting for calling Costa Mesa's mayor a "fucking racist pig." Another time, police officers physically removed Acosta after he vied with Minuteman Project co-founder Jim Gilchrist for attention.

Acosta was removed in both instances for violating Costa Mesa Municipal Code Section 2-61, which makes it a misdemeanor for members of the public who speak at City Council meetings to engage in "disorderly, insolent, or disruptive behavior."

The council eventually approved the proposal, and Acosta sued the city and several officials and police officers for violating his First and Fourth Amendment rights. Acosta also challenged the city council comportment law as unconstitutional.

A federal jury in Santa Ana ultimately found that Acosta had created a disturbance and that authorities had legally removed him.

The 9th Circuit affirmed almost entirely Wednesday, but found that the law's use of the word "insolent" made it overly broad.

"Prohibiting 'insolent' behavior cannot be narrowed to include only an actual disruption," Judge Richard Tallman wrote for a three-judge panel in Pasadena. "Insolent is defined as 'proud, disdainful, haughty, arrogant, overbearing; offensively contemptuous of the rights or feelings of others' or 'contemptuous of rightful authority; presumptuously or offensively contemptuous; impertinently insulting.' This type of expressive activity could, and often likely would, fall well below the level of behavior that actually disturbs, disrupts, or impedes a city council meeting."

Since the offending word can be removed without altering the law's meaning, however, the panel declined to toss the ordinance completely.

"Removal of 'insolent' does not defeat the central purpose of § 2-61," Tallman wrote. "The central purpose is to prevent actual disruptions during and impediments to conducting an orderly council meeting. The remaining portion of § 2-61 stands on its own and is independently applicable, unaided by the word insolent."

Writing in dissent, Judge N. R. Smith argued that the law could not be saved and that it was "unconstitutional in its entirety, rather than just in part."

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