U.S. Supreme Court

Supreme Court rules against antiwar protester, but doesn't reach First Amendment issue

A designated protest area at Vandenberg Air Force Base in California qualifies as part of a military installation that can be declared off limits to a long-time protester, the U.S. Supreme Court has ruled in an opinion considering the protester’s statutory arguments.

The court ruled on Wednesday against antiwar protester John Dennis Apel, who was barred from the base after venturing beyond the protest area in demonstrations in 2003 and 2007, according to the unanimous opinion (PDF) by Chief Justice John G. Roberts Jr. Apel also threw blood on a base sign in the earlier protest and was sentenced to two months in prison for his earlier actions, the opinion said. Yet he continued to visit the base after 2007 to protest, resulting in a conviction for violating a law that makes it a federal crime to reenter a military installation after being removed or ordered not to return.

The protest area was by a road built on a government easement granted to the county. Apel had argued that the law does not apply to land subject to a roadway easement, and that a fence enclosing the base’s operational facilities marked the real boundary of the base. The Supreme Court rejected the arguments, saying the statute applied to all property within the defined boundaries of a military place that is within the command of a military officer.

“In sum,” Roberts wrote, “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.”

The court did not reach Apel’s as-applied challenge to the law under the First Amendment because the appellate court had not reached the issue. Apel had made a related argument that the statute should be interpreted as not applying to peaceful demonstrations in protest zones on public roads for which an easement had been granted, but Roberts was not swayed. “We do not ‘interpret’ statutes by gerrymandering them with a list of exceptions that happen to describe a party’s case,” he wrote.

Justice Ruth Bader Ginsburg emphasized the First Amendment issue in a concurrence that was joined by Justice Sonia Sotomayor. “It is questionable whether Apel’s ouster from the protest area can withstand constitutional review,” Ginsburg wrote. “The court has properly reserved that issue for consideration on remand.”

University of California at Irvine law dean Erwin Chemerinsky represented Apel and previewed the case for ABAJournal.com.

Hat tip to SCOTUSblog.

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