SCOTUS Rules Against Anti-War Protester Removed from ‘Protest Area’ By Military

Writing today for a unanimous Supreme Court, Chief Justice John Roberts affirmed the power of a military base commander to oversee what goes on in a government-designated “protest area.”

The case of United States v. Apel arose from a March 2003 incident when an anti-war protester named John Dennis Apel was arrested and convicted for trespassing and vandalism at California’s Vandenberg Air Force Base. After several more such incidents, Apel was banned from setting foot on Vandenberg property for a period of three years, a restriction that included banning him from a designated protest zone. Apel refused to comply with that order, however, and was subsequently removed from the protest area.

According to Apel, because the protest area is located on a parcel of land adjacent to a public highway that traverses base property, the protest area itself is not under the “exclusive right of possession” of the U.S. government. Apel further argued that the protest area lies “outside the entrance” to Vandenberg, and should therefore not count as military property since “no military operations are performed” on it.

The Supreme Court unanimously rejected those arguments. “We decline Apel’s invitation to require civilian judges to examine U. S. military sites around the world, parcel by parcel, to determine which have roads, which have fences, and which have a sufficiently important, persistent military purpose,” declared Chief Justice John Roberts. “The use-it-or-lose-it rule that Apel proposes would frustrate the administration of military facilities and raise difficult questions for judges, who are not expert in military operations.”

Notably, today’s ruling did not address the separate question of whether Apel’s removal from the protest area violated his rights under the First Amendment. That issue will be the subject of further proceedings by the lower courts. Two members of the Supreme Court, however, did signal their sympathy for Apel on this point. Writing in concurrence, Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, observed, “When the Government permits the public onto part of its property, in either a traditional or designated public forum, its ‘ability to permissibly restrict expressive conduct is very limited.’” As for Apel, Ginsburg’s concurence added, “it is questionable whether Apel’s ouster from the protest area can withstand constitutional review.”

The opinion in United States v. Apel is available here.

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  • WTF||

    " “When the Government permits the public onto part of its property,

    Wait, isn't government property public property, because we are all the government?
    I haz a confuze.

  • Swiss Servator, mehr Käse!||

    I want a piece of old Fort Ord!

  • mad libertarian guy||

    I'm a proponent of the theory that there is no such thing as "government property" and that any property said to be such is actually public property under the management of the government.

    I'm not exactly sure how military bases fall under that . . .

  • RBS||

  • ||

    THAT'S OUR WORD!

  • UnCivilServant||

    This half of the decision I find shockingly non-controvertial. He was barred from that base from previous destructive acts, the zone was still part of the base.

    The question not yet addressed is where the debate should lie. (The 1st Amendment question)

  • UnCivilServant||

    In response to the 1st Amendment Question - I find the whol idea of a designated "protest zone" appalling. With something like a military base, I can accept "anything outside the fence" for reasons of practicality. But to say that "You can only exercise your freedom of speech within this circle" is absurd.

  • Swiss Servator, mehr Käse!||

    Yeah, I found that puzzling - if you are outside and not hurting anyone/anything....knock yourself out.

  • Bo Cara Esq.||

    This case involved property that belonged to the base but that it allowed the state of California to use for the general public. When this fellow was barred 'from the premises' so to speak the base said it applied to this property as well, Apel argued it was a public space in a sense and that to suppress his protest there would be a First Amendment violation.

  • Injun as in from India||

    What part of "ocean of government powers with puny little islands of rights" do you not understand?

  • mad libertarian guy||

    "Free Speech Zones" are an affront to the 1A.

    And it's no coincidence that universities use them extensively. I'm eager to see a SCOTUS case that involves a university "Free Speech Zone." I'd love to see Scalia's argument. He's generally pretty solid on 1A cases, and has been known to defend it with the proper zealousness.

  • Pinky||

    “The ... rule that Apel proposes would ... raise difficult questions for judges, who are not expert...”

    Oh my fucking god! Judges being asked to adjudicate difficult questions on topics about which they are not experts! That sounds pretty close to exactly what I suppose the taxpayer is paying judges to do. The horror!

  • Cro's Innumerous Basterds||

    Indeed. See, e.g., every single SCOTUS decision on intellectual property ever rendered.

  • Stormy Dragon||

    According to Apel, because the protest area is located on a parcel of land adjacent to a public highway that traverses base property, the protest area itself is not under the “exclusive right of possession” of the U.S. government.

    Under this ruling, is Apel now banned from using that highway?

  • Sigivald||

    Notably, today’s ruling did not address the separate question of whether Apel’s removal from the protest area violated his rights under the First Amendment.

    Given that he was banned for vandalism and trespassing in the first place, I can't see how it would.

    There's no special "First Amendment Exception" to property rights, is there?

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