The Washington Post reports:
John Dennis Apel, an antiwar protester arrested on a California military base for demonstrating in a spot set aside for public protests, thought he had a pretty good free-speech case for the Supreme Court on Wednesday.
Most of the justices think otherwise — at least for now.
Members of the court repeatedly shut down Apel attorney Erwin Chemerinsky when he tried to raise Apel’s constitutional rights as part of the court’s consideration of a federal law that allows commanders to bar a person from a military base.
“You keep sliding into the First Amendment issue, which is not the issue” on which the court accepted the case, Justice Antonin Scalia said. “We’re only interested in whether the statute applies.”
Chemerinsky said the statute must be considered in tandem with Apel’s free-speech rights.
“You can raise it, but we don’t have to listen to it,” Scalia replied.
Apel, 63, is a longtime peace activist who has protested at Vandenberg Air Force Base for more than a decade. But he was barred from the base after throwing blood on the Vandenberg entrance sign in a protest in advance of the Iraq war.
He and like-minded activists have continued to protest on the first Wednesday of every month at a site along the Pacific Coast Highway, which runs through the base, that has been set aside for protesters since 1989.
But Apel was arrested several times in 2010 and received misdemeanor convictions for violating a federal law that forbids a person from entering a military base after being ordered not to do so by the commanding officer.
The U.S. Court of Appeals for the 9th Circuit in San Francisco overturned the convictions. It said that commanders have such authority only on property exclusively controlled by the U.S. government and that the base shared control of the highway with the state of California and the county of Santa Barbara.
The court did not address Apel’s First Amendment arguments. . . .