With some Supreme Court arguments, it’s foolish to try to predict how the justices will rule. United States vs. Apel wasn’t one of them. The case involved a challenge by John Dennis Apel, a chronic antiwar protester, to his conviction for returning to Vandenberg Air Force Base after being ordered not to. (On a previous occasion he had thrown blood on a “welcome” sign at the base.)
After arguments in the case in December, I wrote that “it doesn’t look as if the court is going to rule in favor of Apel.” The justices showed little sympathy for the argument (embraced by the oft-overruled U.S. 9th Circuit Court of Appeals) that the Air Force has to accommodate Apel because it didn’t exercise “exclusive possession” of a stretch of Pacific Coast Highway that passes through the base or an adjacent zone for peaceful protest.
As for the argument that Apel’s 1st Amendment rights were violated, Justice Antonin Scalia had this to say to Apel’s lawyer, Erwin Chemerinsky: “You keep sliding into the 1st Amendment issue. You can raise it, but we don’t have to listen to it.”
On Wednesday, the court shot down Apel’s appeal by a 9-0 vote, with Chief Justice John G. Roberts Jr. writing an astringent majority opinion. The bottom line: The authority of a base commander “reaches all property within the defined boundaries of a military place.... Those limits do not change when the commander invites the public to use a portion of the base for a road, a school, a bus stop, or a protest area.”
As for the 1st Amendment, Roberts predictably said that the 9th Circuit hadn’t considered Apel’s constitutional arguments and neither would the Supreme Court “in the first instance.” In a concurring opinion, Justice Ruth Bader Ginsburg suggested that when the case returns to the 9th Circuit, the 1st Amendment argument may get some traction. Her point was that, by opening some of the base to outsiders, the Air Force may have altered the “1st Amendment calculus.” Still, Apel shouldn’t get his hopes up.
Apel’s legal arguments were weak, but now as before the court ruled, I have some sympathy for him. Even if it was within its legal rights, did the Air Force have to arrest Apel and charge him? Granted, he had engaged in trespassing and vandalism in the past, but when he was arrested this time, he was protesting peacefully in an area reserved for that purpose. The Air Force should have cut him some slack.
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