Military Protest Case Tests Supreme Court’s Pro-First Amendment Stance

While the Roberts Court is widely viewed as pro-First Amendment, the justices showed little love for a military protestor in oral arguments held last week. The case, United States v. Apel, involves where to draw the line between military security and free speech rights.

John Dennis Apel was arrested for protesting outside of Vandenberg Air Force Base in California. Apel had previously been banned from the base after he threw blood on a base sign and crossed a green line that delineates the boundary of an authorized protest zone along the Pacific Coast Highway. The law under which Apel was prosecuted prohibits banned individuals from re-entering military installations.

However, the Ninth Circuit Court of Appeals overturned the conviction after finding that, due to easements granted by the federal government for a public roadway, the military base did not exclusively control the land on which Apel was arrested. “The federal government lacks the exclusive right of possession in the area on which the trespass allegedly occurred,” the opinion stated.

In oral arguments before the Supreme Court, the government focused on the Ninth Circuit’s interpretation of the military installation law. Meanwhile, Erwin Chemerinsky, Mr. Apel’s attorney and dean of the University of California Irvine School of Law, framed the case on First Amendment grounds.

“This is a case about the right to peacefully protest on a fully open public road, in a designated protest zone,” he argued.

However, the justices vehemently attempted to sidestep the larger constitutional issue in favor of deciding the case on statutory grounds. With regard to the First Amendment argument, Justice Antonin Scalia plainly stated, “You can raise it, but we don’t have to listen to it.”

Accordingly, the bulk of the justices’ questioning revolved around the federal statute under which Apel was arrested and the extent of the power of the military to deny access to its facilities. Undeterred, Chemerinsky returned to Apel’s right to free speech when concluding his argument. “Like so many cases to come before you, this one is about where do you draw the line,” he said. “Here the government has drawn the line, and it’s a green line. Now, on this side of the green line, there is a First Amendment right to speak.”

So while the Supreme Court may be able to initially sidestep the weighty constitutional issues, should the government prevail in overturning the Ninth Circuit, the First Amendment issues are certain to resurface.