by Patrick Devlin

The US Supreme Court has ruled unanimously in a case involving Americans’ freedom to petition the government on a public highway that is “controlled” by the US military, deciding that a citizen could be permanently barred from protesting at a US military base.

In the case before the court, John Apel was appealing his arrest for protesting the US Military’s use of nuclear weapons on a public highway that traverses Vandenberg Airforce Base, a nuclear weapons facility in California. Apel’s contention was that he was immune from prosecution because he was protesting on a public byway and within a designated “protest zone”.

Apel, a long time anti-nuclear and space war protestor, had in 2003, as an act of protest, spilled four ounces of his own blood on the Vandenberg Air Force base’s welcome sign at the gate of the military installation; an act that he was criminally prosecuted for and an act that caused the military base’s commander to permanently bar Apel from the property.

Apel’s attorney, Dean of the School of Law at the University of California at Irvine, Erwin Chemerinsky, argued that the US Supreme Court has “Never said there’s a permanent forfeiture of First Amendment rights because somebody misbehaved at one time.”

Responding to the line of reasoning presented by Chemerinsky, Justice Antonin Scalia retorted gruffly, “You can raise it (the US Constitutional protection of free speech) but we don’t have to listen to it,” adding that in his view the military is (unlike members of the private sector in America) “entitled to have it both ways. It’s their base.”

Government prosecutors argued that, because Apel had been “barred” from protesting on the military installation (a stipulation of the US military with regard to citizen’s who protest America’s military industrial complex), and the iconic Pacific Coast Highway 1 cuts through Vandenberg Air Force Base, that Apel could be arrested for protesting (i.e. violating the military’s rule that if a citizen is barred from a military installation and returns, he is subject to arrest and prosecution by municipal police).

The unanimous decision of the court, which was penned by Chief Justice John Roberts, was narrow in that it did not make comment on Apel’s rights under the US Constitution to petition the government with grievances, but focused only on the right of the military to eject protestors from its publicly funded garrisons across the America. The court found that in all cases US military base commanders have ultimate control over the installations they control and can determine who and who may not protest on “their base” – even in so-called “protest zones.”

The “protest zone” at Vandenberg Air Force Base was established in the 1980’s in settlement of a federal lawsuit involving the commander of the base’s refusal to allow citizens the constitutional right to petition their government with grievances.

In a concurring opinion Justices Ginsburg and Sotomayor suggested that the appellee may have a better case if he re-frames his contention asserting that his constitutional right to protest had been infringed upon by the US military.

The case is US v Apel, US Supreme Court, No. 12-1038