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.