WASHINGTON — A seasoned California peace protester faced Supreme Court resistance Wednesday, in a case that’s as much about real estate as it is about free speech.
Conservative justices repeatedly hammered the attorney for John Dennis Apel, the trimly bearded protester who’s made a career of demonstrating at Vandenberg Air Force Base on the California coast. Justices, who often defer to the military, didn’t seem to buy Apel’s argument that the First Amendment protected his right to protest on a portion of base property for which Vandenberg officials have a granted the state an easement.
“I’ve got an easement on the back of my property for the utility company, (but) they can’t hold a picnic there,” noted Justice Anthony Kennedy, a frequent swing vote. “They can’t do that.”
Justice Antonin Scalia pointedly added that “we don’t have to listen” to Apel’s broader free-speech claims in order to resolve the case in the government’s favor, while Justice Samuel Alito said he could understand why the military might grant an easement but “not want people lingering . . . because that does create security concerns.”
“I can think of a lot of reasons why the commander would not want a gathering of people on the road but would be willing to let people drive through the road,” Chief Justice John Roberts Jr. said.
With the federal government owning more than 640 million acres nationwide, the eventual ruling in the case, called United States v. Apel, could have relatively broad significance. It definitely will be significant for Apel, who’s trying to clear his record of three misdemeanor convictions for which he paid $355 in fines and fees, and it will matter at Vandenberg.
Vandenberg Air Force Base sprawls across some 22 square miles in Santa Barbara County, nine miles northwest of the city of Lompoc. It includes multiple missile and rocket launch sites, including one that was scheduled to propel an Atlas V rocket with a partially classified payload on Thursday.
Highway 1 crosses the eastern edge of the base, connecting Santa Maria in the north with Lompoc in the south. The highway is on federal land, but the Air Force has granted easements to the state of California and Santa Barbara County. After earlier litigation, base officials designated part of the easement area across from the base’s main gate as a place for public demonstrations.
Apel has been protesting at Vandenberg for at least 14 years, though not always in authorized ways.
“What happens at that base is completely immoral, and it shouldn’t happen,” he said on the Supreme Court steps Wednesday morning, after the hourlong oral argument.
Twice, base officials have barred Apel from entering Vandenberg, including the demonstration area. The first time was in 2003, after he trespassed and tossed blood at a base sign. The second time occurred in 2007, after Apel trespassed again.
In early 2010, he returned to the public demonstration area three times. Each time, he was charged with violating a federal law that makes it a misdemeanor to re-enter a federal military installation after having been ordered not to come back.
“He has been individually identified as posing a threat to the order and security of the base,” Benjamin J. Horwich, assistant to the solicitor general, told the justices.
Erwin Chemerinsky, the dean of the University of California, Irvine School of Law, argued on Apel’s behalf that the First Amendment should protect the peace protester who stayed on public property on which the military had yielded some of its authority.
“When there is a fully open public route, there is a right to use it for speech activities,” Chemerinsky told the court.
Technically speaking, Chemerinsky argued, the federal law under which Apel was charged should apply only when the federal government maintains exclusive control of the land, and not to land for which the military has yielded an easement. While Justices Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor sounded sympathetic at times, the court’s deference to military authority kept arising.
“I suppose if the commander thought it was necessary, he could stop trucks with flammable materials from coming through at the time when a launch is being prepared, and so forth,” Kennedy mused.
Justice Clarence Thomas, following his standard practice, was the only justice not to speak or ask questions during the argument. A decision is expected by June.
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