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.