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9th Cir to Rehear 'Insolent' Activist's 1st Am Claims

By William Peacock, Esq. | Last updated on

Benito Acosta's First Amendment challenge to Costa Mesa, California's ordinance restricting behavior at a city council meeting has been resurrected by the Ninth Circuit after the court agreed to rehear the case in an order released on Monday. A previous panel upheld the law in part, though it found the prohibition of "insolent" conduct to be overbroad.

In 2005, Acosta accosted the City Council during discussion over a proposal to allow local police to enforce federal immigration laws. He was twice removed from city council meetings, once for calling the Costa Mesa mayor a "f***ing racist pig" and another time after he verbally sparred with the Minuteman Project's co-founder, Jim Gilchrist.

He sued over the removals and over the ordinance itself, citing violations of his First and Fourth Amendment rights. He lost at the trial level after a federal jury found that his removal was legal due to the disturbances.

In his initial encounter with the Ninth Circuit, a three judge panel in Pasadena issued a split 2-1 decision upholding the law in part. Though the prohibition on “insolent” conduct was overbroad, the court felt that it could be removed without altering the substance of the law:

“Removal of ‘insolent’ does not defeat the central purpose of § 2-61. 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. Deeming someone who ‘commits disorderly or disruptive behavior’ removable from council meetings … serves that purpose perfectly.”

The Ninth Circuit has previously upheld an ordinance that allowed removal for disruptive behavior in City of Norwalk. The sole substantive difference between the Norwalk provision and that in the present case was the use of the word “insolent,” which the court noted:

“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.”

The court’s solution was a simple matter of severance - snip the offending word and uphold the rest.

Judge Randy Smith disagreed with the half-measure in his dissent, arguing that the law was “unconstitutional in its entirety.”

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