U.S. Supreme Court

Chemerinsky: Can the military restrict protests outside bases?

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Erwin Chemerinsky.

On Wednesday, Dec. 4, I will argue before the U.S. Supreme Court United States v. Apel, a case concerning the right to protest outside of closed military bases. It is a fascinating case that ultimately is about the tension between the United States’ claim of national security in protecting military bases and the right of individuals to protest.

Vandenberg Air Force Base, near Lompoc, Calif., is a closed military base with a fenced perimeter. Entering requires going through a gate with an armed guard. About 150 yards outside of this perimeter, the military has painted a green line on the road. The green line is the demarcation of where the military deems the base to begin. Just on the other side of the green line is Highway 1, Pacific Coast Highway, which runs the length of California. On the edge of Pacific Coast Highway, on the public side of the green line, is a protest zone which was created as part of a consent decree that settled a lawsuit.

Although that stretch of Pacific Coast Highway is a fully open road with no guards or signs indicating that it is military property, it actually is on land owned by the United States. In 1962, the federal government gave an easement to California and the County of Santa Barbara for the highway.

My client, Dennis Apel, has been demonstrating outside of Vandenberg Air Force Base for 17 years. In 2003, he was part of a demonstration where blood was thrown against a wall. He was then issued a letter barring him from Vandenberg Air Force Base.

On several occasions, he returned to protest peacefully in the public protest zone on Pacific Coast Highway. Because of the bar letter, he was asked to leave. When he refused he was arrested. This occurred several times and he was convicted for violating 18 U.S.C. Section 1382, which makes it a federal crime for a person to reenter a military installation “after having been removed therefrom or ordered not to reenter by any officer or person in command.”

The 9th U.S. Circuit Court of Appeals reversed Apel’s convictions and held, in accord with its prior decisions, that Section 1382 applies only to areas where the United States has “exclusive possession.” Following its precedents, the 9th Circuit concluded that the grant of an easement to California and Santa Barbara County for Highway 1 meant that Section 1382 could not be used to punish individuals engaged in peaceful protest on the public road. The United States sought certiorari, which was granted, and emphasized that national security required that it be able to control the perimeter of closed military installations by applying Section 1382.

The case thus poses both statutory and constitutional issues. The statutory question, as phrased by the United States, is whether Section 1382 “may be enforced on a portion of a military installation that is subject to a public roadway easement.” The United States argues that the exclusive possession requirement adopted by the 9th Circuit, and by many other lower courts, adds a requirement that is not found in the statute.

By contrast, Apel argues that the statute applies only to the “military installation,” which is the area under military command. That clearly refers to the closed base. In fact, the United States Attorney’s Manual and the opinions of the Air Force Judge Advocate General consistently and repeatedly have said that Section 1382 applies only to areas under the exclusive possession of the military.

Also, there is a constitutional issue of free speech: Were Apel’s free speech rights violated by convicting him for peaceful speech in a protest area on a public road outside of the closed military base? There have been two major Supreme Court decisions concerning the First Amendment and Section 1382.

In Flower v. United States, 407 U.S. 197 (1972), the court summarily reversed the conviction under Section 1382 of a civilian who was subject to a bar order and “quietly distribut[ed] leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio.” The court stressed that the street was open to unrestricted civilian traffic 24 hours a day. It held that “under such circumstances the military has abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue. The base commandant can no more order petitioner off this public street because he was distributing leaflets than could the city police order any leafleteer off any public street.”

In sharp contrast, in United States v. Albertini, 472 U.S. 675 (1985), the court upheld a conviction under Section 1382 for speech on a military base. An open house was held on Hickam Air Force Base in Hawaii and Albertini, who was subject to a bar order, was convicted because he “reentered” the base during the time of the open house. In concluding that Section 1382 applies “to open houses on military bases,” the court emphasized that it was considering a situation of “reentry to closed military bases.”

Not surprisingly, Apel argues that his situation is just like that in Flower, while the United States invokes Albertini. The United States expressly argues that this is about national security and its right to protect military bases, including controlling the activities immediately outside on federal property. But Apel contends that there is no basis for the concern over national security. The military gets to draw the green line wherever it chooses and–given the fenced perimeter with a gate and an armed guard, and a green line 150 yards outside of that–it is impossible to see how allowing a peaceful protest on a public road is a threat to national security.

People across the country regularly protest outside of military bases. United States v. Apel is likely to be an important case in determining their rights and the powers of the United States to limit such speech.

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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