December 5, 2013

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

Erwin Chemerinsky — the UC-Irvine law school dean — argued in the Supreme Court yesterday. His client, John D. Apel had been banned from protesting within Vandenberg Air Force Base (in an area set aside for protests) after convictions for vandalism and trespass.
But Justice Antonin Scalia said the question before the court did not involve the First Amendment.

“You can raise it,” he said, “but we don’t have to listen to it.”..
Later, Justice Kennedy said: "You have a First Amendment argument... I understand that. But let’s just concentrate on the property ownership.” And Scalia said: “You keep sliding into the First Amendment issue... We’re only interested in whether the statute applies."
 
The Court is reviewing a 9th Circuit opinion that said that the federal statute under which Apel was convicted didn't apply to the situation in which the feds had given some public access to the military base (which they'd done to give access for protests).

ADDED: The wording of the first sentence of the linked report (at the NYT) made me think Apel was not actual on the base but only near it: "John D. Apel... was convicted of breaking federal law by entering an area set aside for protests near the main entrance to Vandenberg Air Force Base." Near the main entrance — you'll see if you keep reading — was on the grounds of the base, but it was "an area open to the public on the other side of a painted green line that separates the closed part of the base from the Pacific Coast Highway."

24 comments:

Ron said...

not actual on the base but only near it

In baseball this is known as "cheating the bag"...the province of middle infielders, and, I guess, law school deans.

tim maguire said...

Seems pretty First Amendmentish to me. One of the key features of free speech is that the government doesn't get to decide who it applies to. This guy's shady background is irrelevant to his right to protest.

MadisonMan said...

If all people convicted of certain laws are banned from the base, I don't see why this person should be excluded from that list just because he has something he thinks is important to say.

I agree, kind of, with Kagan, that banning people with pretty minor convictions is a little heavy-handed, but (shrug)

Lucien said...

I'm shocked, SHOCKED, that these right-wing justices might want to decide the statutory issue before reaching a constitutional issue.

Robert Cook said...

If a section of (or near or in front of) the base has been set aside for protesters, how can this one person be singled out and arrested for accessing the property to use it for its intended purpose...to protest?

It sure seems a first amendment issue to me. How can the justices assert it is a property issue if the property has been set aside specifically for protesters?

ddh said...

How appropriate that the client's last name means "appeal" in several languages. If this story were fiction, I would consider the author's choice of name heavy-handed and portentous.

Bill, Republic of Texas said...

From the article:

Mr. Apel had been barred from the base, in Santa Barbara County, Calif., after earlier convictions for vandalism and trespass.

It sounds like the guy was banned because of earlier criminal acts. Of course the govt can ban someone from their property who has committed crimibal acts in the past and not raise free speech issue (as long as it is uniformly applied) .


donald said...

We also call it an assumed out Ron!

The Drill SGT said...

The guy is ON the Base, and he has been convicted of crimes "On the base" though they are minor.

"Crimes on Federal Installations"

The Feds are not tampering with his 1st amendment right to protest, just telling him that the allowance they make for law abiding protesters no longer applies to him, "ON the base".

Stand over there and wave both your swords into plowshare sign and your First Amendment Nazi sign.

Clyde said...

Apel may have a right to protest, but he doesn't have a right to vandalize/trespass, which apparently was his M.O. in the past. He misbehaved in the past, and they banned him from the base. Let him go protest somewhere else. Better yet, let him do some kind of real job and be a positive contributor to society.

Hagar said...

Outside the fence and in an area set aside for "protests," I think Mr. Apel could reasonably assume he was in compliance with the law. Not knowing what else might have been going on, I think that arresting him was a dumb thong to do, and the case had ought to have been dismissed in magistrate's court.

That this $355 matter has made its way to the Supreme Court must have more to do with the language the lawyers on either side have been using than any offense Mr. Apel may or may not have committed.

Isn't there supposed to be a rule that the Supreme Court is not to take up "fleabite" matters, regardless of "the law" involved?

SteveR said...

His prior acts mean he voids his privilege of visiting the base. You have to be in the theater, having purchased a ticket, in order to yell "Fire".

MadisonMan said...

@Robert Cook, he hasn't been singled out. ALL People with prior convictions are banned.

Your statement suggests there were many people with prior convictions trying to speak/protest and only Mr. Apel was arrested.

PB Reader said...

I guess one needs to do a property survey before exercising your first amendment rights.

Robert Cook said...

The question is: is the "protest zone" on public property or private property? It is referred to in the article a "public road" and as "open to the public."

If it is public property, then arresting anyone for protesting there is a first amendment issue; if it private property, it is a property issue.

(One might argue that a military base, paid for entirely out of our taxes, is "public property" in any event.)

MadisonMan said...

He wasn't arrested for protesting, though, was he? He was arrested for being there (while protesting) after having been convicted of something else that the Govt warranted was severe enough to exclude him from the zone he was protesting in.

Don't fall for the argument that Protesting something automagically throws a penumbra of legal invincibility over you.

mccullough said...

Since Chemerinsky is arguing this, the guy is going to lose big time.

Robert Cook said...

"He wasn't arrested for protesting, though, was he? He was arrested for being there (while protesting) after having been convicted of something else that the Govt warranted was severe enough to exclude him from the zone he was protesting in.

"Don't fall for the argument that Protesting something automagically throws a penumbra of legal invincibility over you."


The question remains: is it public or private property? If it is public property, how can the state a priori forbid any select individual or group of individuals from appearing there, while allowing others to do so?

tim maguire said...

The government has set up a protest zone and then reserved for itself the right to decide who gets to protest there.

You can claim the first amendment argument shouldn't win, but you can't reasonably claim that there is no first amendment argument.

xnar said...

Vandenberg Rules for protest at this link. Google maps will show you the AFB and area in question.

http://www.vandenberg.af.mil/library/factsheets/factsheet.asp?id=4562

Stephen Reynolds said...

Its an AFB, so its govt property in this case with an area designated for protesters. He was not allowed there for his prior acts. That's why he was arrested. There is no first amendment issue. Its actual as simple as that notwithstanding all the lawyers involved. Many military facilities have places where the general public can go under various conditions for various reasons.

heyboom said...

The question remains: is it public or private property? If it is public property, how can the state a priori forbid any select individual or group of individuals from appearing there, while allowing others to do so?

By that logic, what gives the AFB the authority to designate it as a protest area. If they don't have the right to keep people out of that area, how do they have the authority to let people in that area to begin with?

I suspect that the property is on government land, but not on the base proper. Vandenberg AFB is located on a vast chunk of land.

Michael K said...

Chemerinsky is a pretty hard lefty so I would discount his arguments a bit.

Left Bank of the Charles said...

There is an issue of notice. Sure you're banned from the parts of the base closed to the general public. But they painted a line and said the public can come protest, as long as they don't cross the line. The question is, how bright was the line?