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Supreme Court rules military can keep protesters away from bases

WASHINGTON — Setting aside for now a First Amendment claim, the Supreme Court ruled Wednesday that military commanders have broad property rights to keep protesters off their bases, including the public roads that pass through them.

The unanimous decision upholds the prosecution of a veteran peace activist from Santa Barbara, Calif., who repeatedly returned to protest on a highway outside the main gate of Vandenberg Air Force Base even after he had been ordered to stay away.

In 2003, John Dennis Apel was barred from Vandenberg after he threw blood on a base sign. But he returned repeatedly in later years to stage anti-war demonstrations in a designated protest zone along Highway 1.

Officers warned him he was violating the order to stay away, and in 2010 he was prosecuted for violating the order. A magistrate convicted him of trespassing and ordered him to pay $355 in fines and fees.

He appealed and won a reversal from the 9th U.S. Circuit Court of Appeals, which held that the military did not have “exclusive possession” of the public roads and protest areas near the base.

The Supreme Court reversed that decision Wednesday, but without delving into Apel’s free-speech claim.

Writing for the court, Chief Justice John G. Roberts Jr. said 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, especially when the commander reserves authority to protect military property by, among other things, excluding vandals and trespassers.”

He noted that because the Supreme Court had not dealt with the First Amendment issue in the case, Apel was free to raise that point in a further appeal to the 9th Circuit.

Justices Ruth Bader Ginsburg and Sonia Sotomayor agreed with the decision but added that they thought “it is questionable whether Apel’s ouster from the protest area can withstand constitutional review.”

Justice Samuel A. Alito Jr. wrote a separate statement to fault Ginsburg for voicing a view on an issue that was not part of the case.

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