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.”

“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.”

  • Activist’s City Council Fight Granted Rehearing (Courthouse News Service)
  • Phone Book Free Speech Ruling Could Cost Seattle $500,000 (FindLaw’s Ninth Circuit Blog)
  • Wiccans Can Pursue Challenge to CA Prisons’ Five Faiths Policy (FindLaw’s Ninth Circuit Blog)

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