Supreme Court weighs protests at military installations
WASHINGTON — A Supreme Court case involving the right to protest space-based weaponry at a California military base evolved Wednesday into an argument over property functions and highway easements.
On one side was the Obama administration, forcefully defending its right to bar a 63-year-old protester from Vandenberg Air Force Base following his acts of vandalism and trespassing in 2003 and 2007.
On the other side were lawyers for John Dennis Abel, contending that his presence inside a designated protest area along the scenic Pacific Coast Highway in 2010 posed no threat to the Pentagon.
Sitting in judgment were the court's nine justices, who are making free speech cases a central focus of their 2013 term. Before they adjourn next spring, they will rule on at least four other cases involving political contributions, public prayer and how far protesters can be moved away from abortion clinics and Secret Service protection zones.
This time, however, they had granted the case to examine the military's power over land it owns but shares peaceably with state and local governments. That turned the conversation to green lines and Google Maps, not the free speech argument that Abel's lawyer wanted to make.
"You can raise it, but we don't have to listen to it," Justice Antonin Scalia said.
At the center of the case is Abel, who has protested on and off for 17 years against Vandenberg's use of missiles and space weapons. He crossed the line from protester to criminal in 2003 by spilling his blood on the base's entrance sign.
Abel was convicted of trespassing and vandalism, then convicted again for trespassing in 2007, and ultimately barred from the property under a section of the U.S. Code. Still, he joined three protests in 2010, remaining in the designated protest zone across from Vandenberg's main gate. Each time, he was arrested and escorted away. For his trouble, he was ordered to pay a total of $355 in fines and fees.
Abel sued and lost twice in lower federal courts before winning a simple, one-page reversal from the 9th Circuit Court of Appeals, which found that the government lacked exclusive rights to the protest zone property. The Justice Department appealed the case to the Supreme Court, and on Wednesday it appeared to have most of the justices on its side.
Abel's lawyer, Erwin Chemerinsky, dean of the University of California-Irvine School of Law, argued that the protest area is not a functional part of the military base, despite federal ownership of the land. He argued that by granting an easement to state and county governments for highway access, the government had ceded exclusive authority over the area beyond the painted green line marking entrance to the military portion of the base.
He also argued that Abel's free speech rights were being denied. "This court has never said there's a permanent forfeiture of First Amendment rights because somebody misbehaved at one time," Chemerinsky said.
But the justices were having none of it. Most of them appeared to agree that the government owns the land and can allow for traffic, protests, schools and anything else without ceding its rights to clamp down when it sees fit.
"They're entitled to have it both ways," Scalia said. "It's their base."
Assistant Solicitor General Benjamin Horwich said the key isn't how the land is used but who owns it, and the law doesn't insist on "exclusive" authority. On Thursday, he noted, Vandenberg will close down another highway traversing its land during a launch for safety reasons, asserting its ultimate authority despite the easements.
Justice Sonia Sotomayor questioned whether Abel, whose original crime was only a misdemeanor, should be treated as a national security threat under the law that permits the military to dub him persona non grata, perhaps forever.
"We think of this as being sort of a first line of defense," Horwich said.
But most of the justices, including Sotomayor, appeared to agree with concerns raised by Justice Stephen Breyer, who said requiring the military to have exclusive land rights would throw into question "thousands" of instances involving routine easements.
Justice Anthony Kennedy, for instance, noted that a utility company has an easement on his property in California, but. "they can't hold a picnic there."
"It the commander wants to close the base for a rocket launch," Kennedy said, "he certainly can."