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Argument preview: War protests and the military

At 10 a.m. Wednesday, the Supreme Court will hear one hour of oral argument on the authority of military bases to punish anti-war protesters who violate rules of access to those facilities.  Arguing for the federal government in the case of United States v. Apel will be Benjamin J. Horwich, an Assistant to the U.S. Solicitor General.  Arguing for the California protester in the case will be Erwin Chemerinsky, dean of the UC Irvine School of Law.  Each will have thirty minutes of time.


The government’s Vandenberg Air Force Base, between Lompoc and Santa Maria. California, is one of the military’s most important space-age facilities.  It is a launch site for missiles and for outer space missions, making the entire base sensitive enough that members of the public need special permission to enter.  As it happens, though, the physical setting along the eastern side of the base has been an ideal spot for anti-war demonstrators to stage their protests.  The Pacific Coast Highway — U.S. 1 — runs across government property on the edge of the base.  By tradition and law, public roads are open not just to cars and trucks, but also to free-speech activity that is generally protected by the First Amendment.

In 1989, as part of a deal to settle a protester’s earlier case against authorities at the air base, the commander set up a public protest area just outside the main gate, along U.S. 1.  But that arrangement has not settled an ongoing legal battle between protesters and the military at that site.  The Supreme Court has now agreed to step in, to sort out the scope of military power and possible limits on it under the First Amendment, in the case of a frequent California critic of military policy, John Dennis Apel, who lives about twenty-five miles from the air base, in the small town of Guadalupe.

The federal law at issue in the Apel case makes it a federal crime, punishable by a fine and up to six months in jail, for two different kinds of conduct on military bases.  First, it is a crime for anyone to enter a military base for any illegal purpose.  Second, it is a crime to reenter a base, for any purpose at all, after one has been barred or removed from such a base.  Those are misdemeanor offenses.  The law applies to any base that is “within the jurisdiction of the United States.”

The federal government actually owns the land under the portion of the Pacific Coast Highway that is within the limits of base property.  Years ago, however, it formally gave the state of California the right to use that portion of the highway as a public road — technically, the state was granted a “use easement.”  The state passed on that easement to Santa Barbara County, and it still possesses that right.  The protest zone that the base commander authorized is entirely within the space covered by the easement.  Under the commander’s policy, protests within that zone must be peaceful, and are subject to regulations imposed by the military.

John Dennis Apel is no longer welcome in the protest zone.  In 2003, he threw blood on the air base sign at the gate, leading to accusations by the base that he had been trespassing and had engaged in vandalism.  As a result, he was formally barred from even the protest area.  Four years later, after he was again accused of trespassing, he was given a second “bar letter” by the commander.  The second ban was still in effect in 2010, when Apel entered the protest zone in January, March, and April.  He was asked to leave, and given a few minutes to do so.  When he failed to do so, he was escorted off the property, and released.   After those episodes, he  was again charged with violating the provision that criminalizes entering a base after once being barred.

In two separate trials, for the three entries in 2010, he was convicted.  He was ordered to pay fines totaling $250, plus $30 in a special assessment fee and $25 in a processing fee.  Claiming that his prosecution would violate his First Amendment right of free speech, Apel’s plea to dismiss the charges failed before those trials, which were conducted by a magistrate judge.   The case then went to a federal district judge, who upheld the conviction and the penalties.   Apel, the judge ruled, was convicted not for activities protected by the First Amendment — his anti-war protests — but for reentering base property after being excluded.

Apel then appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit.  In a one-page ruling, the court of appeals overturned the conviction.  The three-judge panel noted that, after Apel’s conviction, the Ninth Circuit had ruled in another case from Vandenberg that the Air Force can punish those who enter a base without permission only if the military has “the exclusive right of possession” of base property.  Since the Air Force had given the state a use easement over the part of the highway that lies on the base, it shares authority over that strip — including the protest zone — with the state and Santa Barbara County.  Under that circumstance, the panel said, Apel’s conviction “cannot stand.”   The panel said that it questioned whether the prior ruling was correct, but was nevertheless bound by it as the law of the circuit.

The Justice Department then took the case on to the Supreme Court, last February.

Petition for certiorari

The government’s petition raised the single issue of whether a grant of a “public roadway easement” on a part of a military base bars enforcement there of the law against reentering the facility after having been barred.  That is closely tied to the facts in the case, but also to the core issue:  may this law be enforced only when the government has “exclusive” power over the property?

As is customary, to enhance the chances of Court review, the petition also sought to raise the stakes in the case.  It noted that there are at least three dozen “major military bases” in the geographic area affected by the Ninth Circuit’s decision, and that the decision will impair the ability of base commanders in that area to enforce the federal no-reentry law.   In addition, it argued, base commanders would be forced to make a choice between limiting or cutting off civilian use of those roadways, or continuing to allow demonstrators to encroach on base property, posing risks to base security.  Moreover, it said, base commanders in the future will be less willing to grant such easements, at considerable inconvenience to the motoring public.

The basic legal argument on which the government relied relates to the phrase in the law — “within the jurisdiction of the United States.”  All that should be needed to satisfy that, the petition contended, is that the property in question be a part of federal property; there should be no need to go further, it said, and prove that “such jurisdiction is exclusive.”

Further legal arguments were that the Ninth Circuit decision conflicts with prior Supreme Court rulings on access to military bases, and with decisions by other courts of appeals.   The Ninth Circuit has engrafted onto the law “a requirement of absolute ownership or exclusive possession nowhere to be found in the statute’s text.”   Further, it said, the Ninth Circuit has held steadfastly to that view of the statute, noting that it has twice denied en banc ruling on it and that the panel which decided Apel’s case expressed its doubt about the correctness of the circuit precedent.

Protester Apel turned down his first opportunity to answer the government petition, so the Court in March asked for a response.   In urging the Court not to take on the case, his lawyers made their own effort to escalate what they saw at issue: the scope of the First Amendment free-speech right when the right is exercised in a public space — that is, “a public roadway that was outside a military base.”

By offering re-worded versions of the potential questions in the case, Apel’s attorneys were directly disputing the core of the government argument: that “within” U.S. jurisdiction was the only factor that counted in determining whether the military can undertake regulation of demonstrators.

To counter the government reliance upon the sensitive nature of what happens on the main part of Vandenberg, Apel’s opposing brief noted that the public uses the roadway at the site to get to a beach, that there is an Amtrak rail station at the beach, and that there is a public school just across from the air base’s main gate.   The scene this document was painting was one of open public access, rather than a secured area that needs close monitoring by the base commander to protect his facility’s mission.

The heart of Apel’s legal argument is that the statute simply has no application in areas where the public “has a right to be present,” as a result of the grant of an easement.  Relying upon traditional property law, the brief suggested that the government did not understand the meaning of an easement.  That confers “an interest in the property” that, while it is in force, cannot be “revoked, qualified, or made newly subject” to conditions by the owner of the land that lies beneath the easement, the brief said.

Thus, federal jurisdiction may exist over an area such as the protest site outside the air base gate, but that is insufficient to overcome the right to peacefully use the ground to which the easement directly applies, according to his brief.   While this document conceded that the easement includes a clause giving the base commander the authority to impose regulations, the brief argued, “there is a marked difference between legislating rules for conduct on the easement and barring people from even going upon the easement.”  By excluding Apel, or others who might act contrary to base regulations, it said, the air base commander is in effect voiding the easement as to those individuals.  That is far more than mere regulation of use of the property, it said.

To the government’s argument that the Ninth Circuit decision would create a lawless zone within the protest area, Apel’s filing said that there are other federal laws that regulate conduct on government property, and those would remain even if the statute at issue here were made unenforceable to the extent that the base would seek to bar reentry to the protest zone for specified individuals.

The Court granted review on June 3.

Briefs on the merits

The federal government’s brief on the merits mainly emphasized three points:  military bases include any place under military command, people like Apel who have once been excluded from such a base pose real threats of deeper penetration of base property, and the Supreme Court has already made clear that limitations on the scope of the statute at issue should not be tacked onto its actual language.

Addressing Apel’s attempt to turn the case into a major test of First Amendment rights, the federal brief noted that the Ninth Circuit did not rule on that issue, and argued that, in any event, the Court has previously rejected that very same argument, but that Apel would be free to raise that constitutional argument to challenge his conviction when the case returned to the Ninth Circuit on remand from the Court.

Noting that, in responding to the government’s petition, Apel’s lawyers had conceded that his prosecution met all of the requirements of the text of the law, the government brief suggested that the only real question was the meaning of that language.  The law, it argued, was made deliberately broad — applying to any place where the military is in command, to make sure that it reached U.S. bases overseas.

By seeking to write into the law an “exclusive possession limitation,” the U.S. filing contended, Apel was raising a threat to the “safe and orderly operation of many of the nation’s” military facilities.   Prior violations of base regulations governing base property, the brief said, are sufficient to show that there is a threat to base security when such a violator seeks to reenter any part of the base’s property, according to the brief.   Apel would “tie a base commander’s hands” so that he would have to await “real damage and deeper entry into his base” by someone already shown to be a threat, the U.S. brief contended.

Apel’s merits brief opened with a more extensive portrait of the place where he has been staging his protests and where the base commander wants unlimited power to exclude a demonstrator.   The portrait actually treats the green line that is painted along the highway as the boundary of the base itself; beyond that line is the public easement area, on which the public travels unimpeded throughout the day and night.  This is a picture of a public zone, and that is an intentional portrayal, to fit it into First Amendment doctrine.

The argument section of his formal brief opened this way: “Dennis Apel was convicted of violating 18 U.S.C. 1382 for speech that occurred on a public road, Highway 1, in an area which has been officially designated by Vandenberg as a protest area.”   He was prosecuted, it added, only because the federal governed owned the land underneath that portion of the highway, and only because he engaged in speech activity in an “area that is freely open to the public.”

Thus, he contended, the Court should not revive his criminal convictions because they violate the First Amendment, which shields such activity on a public road that is a “quintessential public forum.”  If not a completely unrestricted forum, the brief said, that protect area has at least the character of a designated public forum by order of the base commander.   That order, it noted, was part of a consent decree to settle an earlier protest case, and it opened the zone “to speech and protest activities.”

Conceding that the Court previously had upheld convictions for speech activity that occurred inside a closed military facility, the Apel brief said “never has this Court upheld a conviction under Section 1382 for speech occurring outside of a closed installation merely because the military owns the land on which the speech occurred.”

Secondly, the convictions should not stand, his brief asserted, because the government simply does not have the authority under that statute to exercise unfettered control over all land owned by the military regardless of how it is used.   The military, it argued, has clear authority only within the “clearly defined boundaries” of its installation.

Thus, the brief went on, the statute must be given a limiting interpretation “to avoid the serious constitutional problems raised by the government’s view” of its sweeping authority over any place under military command.

To the government’s strong assertions of national security needs, the Apel brief contended that, if sensitive military activities did occur in the protest zone, the base commander would be required to place it off limits to all of the public.

Apel’s side of the case is supported by five amicus briefs, from First Amendment advocacy organizations. criminal defense lawyers, and advocates of peaceful resolution of disputes.   There are no amici on the government’s side.


Going into this case, the federal government has one distinct advantage:  the customary reluctance of the Court to second-guess the military on its security needs.  Beyond that, its case depends heavily upon the Court giving a sweeping interpretation to the federal law’s wording — what constitutes a military installation, and how far the “jurisdiction of the United States” reaches at such a facility.

Protester Apel has one potential advantage, but it may be a long shot:  that the Court will go beyond the mere wording of the statute and see in his prosecution a threat to First Amendment principles.  If the Court were to forego any ruling on the First Amendment (other than to send that question back to the Ninth Circuit), Apel would be at serious risk of losing this round in the dispute.  His lawyers have conceded that the literal language of the statute — criminalizing reentry after being barred — covers what happened in his case, but he needs a limiting interpretation.

He does have another opportunity — with long odds against it at this stage — and that is that the Court might interpret “easement” in a way consistent with traditional property law.  When the military at Vandenberg, in 1962, granted such a property access permit to the state of California for its coastal highway, what was it giving up and what can it, from time to time, take back?  That question is the foundation of Apel’s contention that such a grant necessarily puts limits upon “the jurisdiction of the United States” over the land on which public commerce regularly occurs in an unimpeded fashion.

The most significant weakness in Apel’s case is the repeated attempt by his attorneys to portray his activities outside the Vandenberg gate as peaceful.  Much of the rhetorical force of the government’s security argument is that he constitutes a threat, because of his prior vandalism.  His attorneys cannot make that go completely away, even if Dennis Apel himself hardly seems to be a terrorist.

Recommended Citation: Lyle Denniston, Argument preview: War protests and the military, SCOTUSblog (Dec. 3, 2013, 12:03 AM),