Dismissing Free Speech Claims, Justices Turn to Plain Line-Drawing

http://www.nytimes.com/2013/12/05/us/politics/supreme-court-prepares-to-set-a-line-this-time-literal.html?src=recg December 4, 2013 Dismissing Free Speech Claims, Justices Turn to Plain Line-Drawing By ADAM LIPTAK WASHINGTON — John D. Apel says his First Amendment rights were violated when he was convicted of breaking federal law by entering an area set aside for protests near the main entrance to Vandenberg Air Force Base, from which he had been banned. But the Supreme Court justices did not seem interested in Mr. Apel’s free speech rights on Wednesday during arguments in his case. Mr. Apel had been barred from the base, in Santa Barbara County, Calif., after earlier convictions for vandalism and trespass. But he said those orders should not apply to 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. “This is a case about the right to peacefully protest on a fully open public road, in a designated protest zone,” said Erwin Chemerinsky, a lawyer for Mr. Apel and dean of the law school at the University of California, Irvine. 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.” That left a much narrower question about the reach of the federal law under which Mr. Apel was convicted. It forbids people to re-enter military installations from which they have been barred. The United States Court of Appeals for the Ninth Circuit, in California, ruled for Mr. Apel on statutory rather than constitutional grounds. It said the federal government could not enforce the law because Mr. Apel had been standing on property partly controlled by the state and county. “The federal government lacks the exclusive right of possession in the area on which the trespass allegedly occurred,” said the unsigned opinion, which overturned Mr. Apel’s conviction. It was that ruling that interested the justices, and there seemed to be a consensus that the Ninth Circuit had gotten it wrong. Benjamin J. Horwich, a lawyer for the federal government, said nothing should turn on whether the base had allowed some public access or granted state and local governments some rights to the stretch of the Pacific Coast Highway that crosses the base. So long as a military commander has authority over the property, Mr. Horwich said, the law under which Mr. Apel was convicted applies. He added that various military and government activities occur on the base, including a rocket launch scheduled for Thursday. Justice Sonia Sotomayor suggested that Mr. Apel could not pose much of a threat. “It seems such an odd thing for a Class B misdemeanor to be used to protect the national security,” she said. Mr. Apel’s punishment was $355 in fines and fees. Mr. Horwich was asked no direct questions about the First Amendment. In its brief, the federal government urged the justices to clarify the scope of the law under which Mr. Apel was convicted and to return the case to the lower courts for a ruling on his First Amendment defense if the government prevailed on its statutory argument. When Mr. Chemerinsky tried to invoke the First Amendment, he was rebuffed. “You have a First Amendment argument,” Justice Anthony M. Kennedy said. “I understand that. But let’s just concentrate on the property ownership.” Justice Scalia also admonished Mr. Chemerinsky. “You keep sliding into the First Amendment issue,” he said. “We’re only interested in whether the statute applies.” When Mr. Chemerinsky turned to the question of how to determine the reach of the law, he said, “The United States wants to have it both ways.” The federal government gave the state responsibility for the road, “but they also want to claim that they have all of the control over that public road as they would within the base,” he said. Justice Scalia was not convinced. “They’re entitled to have it both ways,” he said. “It’s their base.” Justice Elena Kagan said Mr. Chemerinsky’s position amounted to “sort of a ‘use it or lose it’ argument.” “The government has this commanding authority,” she said, but “unless the government uses it to its full extent every day of the week, it loses it.” Mr. Chemerinsky replied that Justice Kagan was in a sense right, given that the government had “decided to create a public road with a protest zone outside of it.” He concluded his argument in the case, United States v. Apel, No. 12-1038, with an expression often heard at the Supreme Court in a figurative sense. But Mr. Chemerinsky was also being literal. “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.” © 2012 The New York Times Company Donations can be sent to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD 21218. Ph: 410-366-1637; Email: mobuszewski [at] verizon.net. Go to http://baltimorenonviolencecenter.blogspot.com/ "The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs