US Supreme Court says protester can’t use protest area

The Supreme Court on Wednesday unanimously ruled against an antiwar protester who was convicted of breaking federal law by entering an area set aside for protests near the main entrance to Vandenberg Air Force Base.   The court’s opinion, by Chief Justice John G. Roberts Jr., involved the interpretation of a federal law that made such re-entries a crime, and it turned on an assessment of the scope of a base commander’s authority over property controlled by the military. The court declined to address the First Amendment questions in the case, though two concurring justices indicated that they were substantial.
The case will now return to the United States Court of Appeals for the Ninth Circuit, in San Francisco, for further proceedings on the constitutional question.
The defendant in the case, John D. Apel, had been barred from the base in Santa Barbara County, Calif., after earlier convictions for vandalism and trespassing. He argued that those orders should not have applied to an area open to the public on the other side of a painted green line that separates the The Ninth Circuit court agreed, ruling that the federal government could not enforce the law because Mr. Apel had been standing on property partly controlled by the state and the county.
“The federal government lacks the exclusive right of possession in the area on which the trespass allegedly occurred,” said the unsigned Ninth Circuit opinion. It overturned Mr. Apel’s conviction, which had required him to pay $355 in fines and fees.
Chief Justice Roberts rejected that interpretation of the law.
“We decline Apel’s invitation,” the chief justice wrote, “to require civilian judges to examine U.S. military sites around the world, parcel by parcel, to determine which have roads, which have fences, and which have a sufficiently important, persistent military purpose. The use-it-or-lose-it rule that Apel proposes would frustrate the administration of military facilities and raise difficult questions for judges, who are not expert in military operations. And it would discourage commanders from opening portions of their bases for the convenience of the public.”
In a concurrence, Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, said the majority’s interpretation of the words of the law was correct. “But a key inquiry remains,” Justice Ginsburg wrote, “for the fence, checkpoint and painted line, while they do not alter the base boundaries, may alter the First Amendment calculus.”
When the government allows the public onto its property, she wrote, its right to restrict speech there is limited. “It is questionable,” she wrote, “whether Apel’s ouster from the protest area can withstand constitutional review.”
In his own concurrence, Justice Samuel A. Alito Jr. said the court’s failure to address the First Amendment issue “should not be taken to signify either agreement or disagreement with the arguments outlined in Justice Ginsburg’s concurrence.”
About an hour after the chief justice announced his opinion in the case, United States v. Apel, No. 12-1038, the court was disrupted by a protester during the argument of a patent dispute.
“Money is not speech,” said the protester, later identified by the court’s press office as Noah Newkirk of Los Angeles. “Corporations are not people. Overturn Citizens United.”
He spoke loudly but calmly from the rear of the courtroom, referring to the court’s 2010 decision allowing unlimited corporate election spending.
Mr. Newkirk was hustled out of the courtroom by court personnel. He was charged under a federal law that bans “a harangue or oration” and “loud, threatening or abusive language in the Supreme Court building.”

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