Justices Skeptical of First Amendment Claims in Arrest

, The American Lawyer

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John Dennis Apel being arrested outside Vandenberg Air Force Base
John Dennis Apel being arrested outside Vandenberg Air Force Base in 2007.

WASHINGTON - 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.

During arguments in the case United States v. Apel, 12-1038, 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.

See transcripts of oral argument and briefs.

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.

John Dennis Apel, left, and his lawyer Erwin Chemerinsky speak to reporters outside the Supreme Court in Washington Wednesday following an argument on the right to protest at a military base.

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.

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