Supreme Court rules against protester, avoids First Amendment claim

The U.S. Supreme Court yesterday unanimously declined to address the First Amendment claims of a protester who was banned from a military base , deciding the case solely on property ownership grounds.

Anti-war activist John Apel was banned from Vandenberg Air Force base in 2003 after he was involved in a protest that included throwing blood on a sign at the base. He was arrested and served two months in jail and was barred from the base for three years. After he began protesting there again in 2008, the base commander permanently banned Apel.

Apel returned to protest in a designated protest zone just outside the base’s gates along Highway 1 in California. Apel was then convicted and fined three times for trespassing. The government argued that the protest zone, is part of base property. Apel argued that the zone was outside the base commander’s jurisdiction, on land shared by the state and the federal government, and that his expulsion violated the First Amendment.

But the Justices refused to decide the case on First Amendment grounds. Instead, all nine justices decided only the issue of whether the protest zone was part of the military installation. In concluding it was, they overruled the Ninth Circuit Court of Appeals and upheld the base commander’s order barring Apel from the zone.

In his opinion for the Court, Chief Justice John G. Roberts noted that because the Court had not addressed the First Amendment claim, Apel could still challenge the policy on those grounds. Justice Ruth Bader Ginsburg wrote a concurring opinion, which Justice Sonia Sotomayor joined, saying Apel’s expulsion from the protest zone might not withstand a First Amendment challenge.