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Argument recap: Skirting a constitutional issue


Striving mightily to stay clear of a constitutional question, the Supreme Court spent an hour on Wednesday basically trying to figure out what a property easement means.  What does it give to, and what does it take away from, users of the property? And where does it draw the line between what is allowed and what is forbidden?  The only reason this was not just an exercise in ordinary property law is that the Court was talking about military control of access to its defense facilities, and its power to punish those who encroach on it.

A Californian who devotes much of his life to staging anti-war demonstrations outside an Air Force base along the Pacific Coast seemed likely to win his complaint of legal mistreatment only if the Court were to take seriously his claim that his First Amendment right of free speech has been violated.

But it seemed quite clear that a majority was most reluctant to even consider that argument.  “You can raise it, but we don’t have to listen to it,” Justice Antonin Scalia bluntly remarked to the protester’s lawyer — Erwin Chemerinsky, dean of the UC Irvine School of Law.

The case involves John Dennis Apel, who lives not far from Vandenberg Air Force Base and regularly carries his anti-military message to a protest zone marked off just outside the base’s main gate.  But, after he threw blood on the base gate, and crossed the green line that marks the protest zone’s boundary, the base commander excluded him — permanently, unless the commander were to relent.

But Wednesday’s hearing had proceeded for only a few minutes when Justice Anthony M. Kennedy — whose vote Apel almost certainly needs if he were to win his challenge to the exclusion — brought the case down to the specific terms of the base commander’s grant of permission to use a section of base property for a public highway, an easement.  It is within the area of the easement that the commander also has allowed demonstrators to gather and protest.

“Look at the easement,” Kennedy said. “It makes clear that the commander has control over the property.”  His comment apparently was prompted by several questions from other Justices about just how widely the power of the military extends to grant or deny access to its facilities.  A federal law makes it a minor crime to enter a base for an illegal purpose, or to reenter it after being barred.

Justice Sonia Sotomayor, for example, wondered why the military needed to keep control over land that it actually owned but was not using for activities “with a military flavor.”  She was reacting to the broad argument made by a government lawyer, Benjamin J. Horwich, an Assistant to the U.S. Solicitor General, that the military has lawful authority over any place over which it exercises command, no matter what actually occurs on a given part of its property.

The U.S. Court of Appeals for the Ninth Circuit, overturning Apel’s convictions for violating the military facilities control law, had ruled that the grant of an easement for the public road meant that the military did not have “exclusive possession” of the ground in front of the base’s main gate, and without that it could not punish Apel for being in the protest zone there.

Horwich made arguments based on the wording of the military installation law, and on public policy, and he avoided Apel’s First Amendment claim (not passed upon by the Ninth Circuit).  He said that the Ninth Circuit, in restricting the base commander’s power over the easement area to a concept based on “real estate law,” had misinterpreted the installation law.  On the policy aspect, he argued that the commander needs to keep control over all the property to protect base security.  He noted, in passing, that the commander will shortly be closing one public road on the base as a precaution during a planned space launch operation.

His arguments encountered the most difficulty with Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, who clearly did not read the installation law as broadly as Horwich was proposing.  For example, Kagan asked him: “Is there any point at which a military installation loses its character [as military]?”  Horwich essentially said no, that the base commander would need to keep control.

Justice Kennedy did not return to questioning while Horwich was at the lectern.  But his one comment had put Apel’s lawyer on notice that he was going to remain focused on the details of the commander’s authority to control base property.  Chemerinsky, though, had been seeking throughout the briefing to make the case into a First Amendment dispute.

He opened with a few words about how Apel had staged his protests “on a fully open public road” — that is, the kind of place often used for free-speech activity.  He also mentioned a prior Supreme Court ruling, barring the conviction of an individual for distributing leaflets on a public road on a military base.  Kennedy quickly cut him off: “That’s a First Amendment case.”  That case, the Justice added, was not about the scope of the installation law.

Several more times, as Chemerinsky answered questions, Kennedy returned to the point that this case was not about the First Amendment.  Soon, Justice Scalia was making the same point: “We are only interested in whether the statute applies.”

While other Justices came in with questions, it was Scalia who was taking control of the argument, making a fervent defense of the military commander’s authority.  When Apel’s lawyer said the military was trying to have it both ways, permitting an easement for a road that others would maintain, while claiming control over the property under that road, Scalia shot back that the military could have it both ways.  “It’s their base,” he remarked.

As other Justices raised points about how property gets managed, when some members of the public are given temporary access, what difference it makes when a fence is put up, and the scope of a property owner’s right to exclude others, the case was moving even further away from Apel’s First Amendment grievance.

When Chemerinsky tried to bring up the constitutional question, Scalia reminded him that the Court had not granted review on that point.  But, the lawyer answered, it was necessary for the Court to interpret the installation law in a way that did not raise serious constitutional questions about its scope as applied to demonstrators staging their protests in a designated zone.

Chemerinsky did concede that it was within the base commander’s power to decide whether to allow any protest zone at all on base property, but once he had done so — as at Vandenberg — the installation law did not confer authority over who could be in that zone or power to punish “peaceful protestors” for being in that zone.

“This case,” Chemerinsky said, ” is about where you draw the line” on the military’s control of access to its property.  In this case, he noted, there is a line — the green line that marks where the protest zone ends and the base proper begins.  It was a final effort to keep the case focused on free speech, but by then it was far from clear that the Court was ready to go there.

Recommended Citation: Lyle Denniston, Argument recap: Skirting a constitutional issue, SCOTUSblog (Dec. 4, 2013, 1:10 PM),