The U.S. Supreme Court on Wednesday appeared reluctant to give First Amendment protection to a California peace activist who has been barred from demonstrating at Vandenberg Air Force Base.
Hearing arguments in the case United States v. Apel, most justices seemed eager to avoid a First Amendment ruling, preferring instead to base their decision on a federal law that the government says gives base commanders broad power to control public access to military installations.
John Dennis Apel, who says he has demonstrated at the base regularly for the past 17 years, was barred from doing so after he vandalized a base sign in 2003 by splashing his own blood on it. But Apel argued that he should still be able to participate in protests in an area outside the base that has been reserved for free speech activities since 1989. The land is owned by the Air Force, but county and state governments have easements because it is adjacent to Route 1, a public highway.
The U.S. Court of Appeals for the Ninth Circuit ruled in Apel’s favor, finding that because of the easements, the base commander does not have exclusive power over the land and cannot banish protesters permanently.
In part because the Ninth Circuit based its ruling on 18 U.S.C. 1382, the statute governing reentry of barred individuals, not on any constitutional claim, justices pounced on Apel’s lawyer whenever he invoked the First Amendment. Apel was in the audience.
“This case is about the right to peacefully protest on a fully open public road, in a designated protest zone,” said Erwin Chemerinsky, dean of the University of California, Irvine School of Law, arguing on behalf of Apel. He said that for decades courts had interpreted the law at issue to apply only if the land was exclusively controlled by the federal government, without easements. “Any other interpretation would raise grave First Amendment issues,” Chemerinsky said.
But more than once, Justice Anthony Kennedy tried to steer Chemerinsky back to the questions of ownership and easements. “You may have a First Amendment argument. I understand that. But let’s just concentrate on the property ownership,” Kennedy said.
Chemerinsky asserted that an easement for a public road would carry with it a right of free expression. Several justices balked at that, suggesting that a base commander might have security or other reasons to restrict speech activities even along a public road that runs through base property. Justice Stephen Breyer also said, “there are millions of reasons” for easements, wondering aloud whether an easement to allow utility companies to read electric meters on a base would also open the door to public protests near the meters.
A public-road easement is different from a utility easement, Chemerinsky said. “That’s why I don’t think that the First Amendment aspect of the case can be separated from the statutory aspect,” he said, adding that the court’s practice is to interpret statutes to avoid “constitutional doubts.”
But still, some justices did not want the constitutional issue to take over the case. “We’re only interested in whether the statute applies,” Justice Antonin Scalia said. “You can raise [the First Amendment,] but we don’t have to listen to it.”
Though most of the justices seemed ready to defer to military prerogatives and the need for base control, some members of the court also wondered whether the government’s position swept too broadly.
Justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg peppered the government lawyer with questions that seemed to argue that total control by a base commander of all land owned by the military was not necessary.
Kagan, for example, offered a hypothetical situation where the military allowed restaurants, movie theaters and condominiums to be built on base property, turning it into “a regular old town.” She asked whether there is “any point at which a military installation can lose its character as such?”
Assistant to the solicitor general Benjamin Horwich said no, asserting that if the land was still under the “formal command” of the commander, the commander had full authority to regulate access.
Ginsburg objected that under the government’s theory, there would be “nothing left” to the court’s 1972 precedent Flower v. United States, in which a previously banned protester was allowed to hand out leaflets on a public road that ran through a military base. Chemerinsky based his First Amendment argument on Flower.
Horwich said various easements should not be allowed to “punch holes” in the authority of military commanders to control base property. He drew an analogy with a national park where feeding grizzly bears might be prohibited. “It means you can’t feed the grizzly bears anywhere in the park,” he said. “It doesn’t mean, yeah, you’re not supposed to, but it won’t be a misdemeanor if you feed them on the road.”
Contact Tony Mauro at firstname.lastname@example.org.