The Supreme Court confronts the line between free speech and security with protester’s case


Dennis Apel appears at a Nov. 6 protest at Vandenberg Air Force Base in California. He has been attending the regular gathering the first Wednesday of the month for the past 17 years to protest weapons in space. (Jamie Rector/For The Washington Post)
November 30, 2013

Dennis Apel has crossed many lines in his life.

One marked his transition from trucking-company salesman to caretaker of the poor. He stepped past another when he went from persistent, perhaps quixotic, protester to antiwar vandal. Tossing his blood on this military base’s entrance sign a decade ago earned him two months in prison.

But the line at issue in his free-speech case before the Supreme Court on Wednesday is real and tangible — painted in thick green on a portion of the Pacific Coast Highway.

The federal government owns the land on both sides of the road, which runs through this sprawling air base north of Santa Barbara. On one side of the line are guarded gates and the main entrance to the military installation; on the other is a spot that base officials have set aside for people to protest the preparation for war that goes on there.

The federal government says John Dennis Apel does not belong on either side of that line, or standing near the highway, or for that matter anywhere else in the 22 square miles that constitute the base’s property.


Apel, center, speaks with Andrew Cox and Mark Riggar, in red, investigators with the Vandenberg Air Force Base police, on Nov. 6. (Jamie Rector/For The Washington Post)

The justices on Wednesday will hear the government’s plea that national security demands base commanders be able to keep people such as Apel, who have been formally banned from a military installation, from setting foot in any part of their domain — even the spots designated for protesters.

The 63-year-old Apel said he cannot believe his monthly vigils — he has been at it since 1997 — are worth all this trouble. “It’s surreal. It’s bizarre,” he said last month after showing a visitor the official protest spot. He is allowed there now that the U.S. Court of Appeals for the 9th Circuit has overturned his most recent convictions.

“I can’t even imagine they took this thing to our local court,” he said. “I thought they’d just keep arresting me forever, hoping that someday I’d just finally stop.”

Apel’s is the first of several cases the Supreme Court will hear this term that raise important free-speech concerns. They will test the justices — and the public — on First Amendment protection for speech that both ends of the ideological spectrum might find objectionable.

In January, the justices will consider a Massachusetts law that expanded a buffer zone around abortion clinics. State officials said it was necessary to protect clinic workers and those entering the facilities from violence and harassment. People who oppose abortion say the law unconstitutionally silences their voices and makes it impossible to reach women who might be persuaded not to have an abortion.

And this past week, the justices decided to consider whether Secret Service agents may be sued if they treat those who are denouncing a president differently from those who support him. The case involves a decision by two agents to move a group of protesters slightly farther away from an appearance by President George W. Bush than those who were there to cheer him.

Michael W. McConnell, head of the Stanford Constitutional Law Center, said he wished Apel’s case and the one concerning the Massachusetts law had been scheduled for the same day.

“The most important thing about free-speech doctrine is that all speech is treated the same, no matter what its subject and viewpoint,” said McConnell, a former federal appeals court judge nominated by Bush. “It will be interesting to see how many defenders of the right to protest on the public highway outside a military base find excuses to suppress speech on public streets near abortion facilities.”

The case

In Apel’s case, Solicitor General Donald B. Verrilli Jr., representing the federal government, told the justices that a consideration of constitutional rights was unnecessary. He said in his brief that the 9th Circuit’s decision simply misinterpreted a federal law that gives base commanders wide and necessary latitude to control what is in the best interest of their installations.

Apel was prosecuted under the law that makes it a crime to reenter any military “reservation, post, fort, arsenal, yard, station or installation” after being lawfully banned from such a place.

But the 9th Circuit reasoned that the law applies only when the federal government has exclusive control over the land in question. Vandenberg shares control of busy Highway 1 with the state of California and the county of Santa Barbara.

Moreover, Apel and his attorney Erwin Chemerinsky, a prominent constitutional scholar who is dean of the law school at the University of California at Irvine, say the justices must consider the important free-speech issue at hand. They argue Apel cannot be prosecuted for what all agree were peaceful protests in 2010 that took place in a public space that was specifically set aside by base officials for that purpose.

“Apel was arrested and convicted for exercising his constitutional right to peacefully protest the military’s activities,” Apel claims in his brief. “Neither the First Amendment nor [the federal law] permits this result.”

Apel said he hopes the case will bring attention to the issue that drives him and a small band of like-minded activists to stage their simple protests each month: the expansion of warfare and weaponry “into the higher frontier of space.”

“In all the back-and-forth about easements and jurisdictions and statutory arguments — and even in the First Amendment issues — what gets completely lost is, why do we go out there in the first place?” he said.

With thick gray hair and a gap-toothed smile, Apel is soft-spoken and earnest as he describes a life trajectory that went from salesman to hospital volunteer to chaplain to activist in the Catholic Worker movement.

He and his wife, Tensie Hernandez, run a Catholic Worker house in Guadalupe, a town north of Vandenberg with a large population of poor and undocumented farmworkers. Unaffiliated with the Roman Catholic Church, Apel and Hernandez depend on donations — about $35,000 a year, Apel says — to provide donated clothing and food and run a medical clinic.

One night at the clinic in 2003, as the Iraq war approached, the couple asked a doctor to withdraw some of their blood. Apel put it in a bottle, and the next time he went to Vandenberg to protest, he crossed the green line and poured the blood on the letters that marked the entrance.

Hardly an original idea, he said, but symbolic. Blood was spilled among the innocent of the Sept. 11, 2001, attacks and more would come from the cruise missiles fired at Iraq. At least during the initial phase of the war, Apel said, the military would not see firsthand the carnage.

“We felt that in solidarity with the people — not the government, certainly, but the innocent people — that the military should see some blood,” he said.

He was convicted of trespassing and vandalism, and again for trespassing in 2007. But he said he has been careful not to cross the green line since, and his three arrests in 2010 were all for being in the protest zone, which is across the street and about 200 yards from the guard station.

The base

Vandenberg, a Defense Department space and missile test base, is so vast it defies the traditional image of a military installation. One can drive for miles without a reminder that it is military property. There are beaches open to the public — except during the endangered snowy plover’s nesting season — and an Amtrak line runs through it, providing spectacular views of the Pacific.

At the intersection where the protest site is located, thousands of cars drive by. (Apel was allowed to be in one, as long as he did not stop and get out.) There is a public middle school at the spot, and a local transit bus lets off passengers between the green line and the guarded gate station.

The government says that just because the base commander has allowed such accommodations for protesters does not mean he has forfeited the right to exclude people such as Apel. A request to talk to base officials about Apel was turned down.

Verrilli relies on a 1985 Supreme Court decision that upheld the conviction of a man who was banned from a military base but entered during a public open house. He, too, claimed a First Amendment right, but the court said the law was “content-neutral” and met an important government interest in banning those whose “previous conduct demonstrates that they are a threat to security.”

But Apel and his attorney argue that he is not attempting to enter a space where the military actually conducts business. They rely on a 1972 decision that said a man could not be convicted for distributing leaflets on a Texas base, because he was on a street that was used by both civilians and military personnel.

For now, Apel and a small group of like-minded activists protest at Vandenberg the first Wednesday of every month. He acknowledges it might not seem he is making much of an impact.

“Do we think we’re going to make a change? No. I would say no,” Apel said. “Efficacy is not our primary goal. . . . We are not called to be successful. We are called to be faithful.”

The case is U.S. v. Apel.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
SECTION: {section=politics, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: {allow_comments=true, allow_photos=false, allow_videos=false, comments_period=14, comments_source=washpost.com, default_sort=, default_tab=, display_comments=true, is_ugc_gallery=false, max_items_to_display=15, max_items_to_display_top=3, moderation_required=false, stream_id=}!!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Comments
SECTION: {section=politics, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: {allow_comments=true, allow_photos=false, allow_videos=false, comments_period=14, comments_source=washpost.com, default_sort=, default_tab=, display_comments=true, is_ugc_gallery=false, max_items_to_display=15, max_items_to_display_top=3, moderation_required=false, stream_id=}!!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Show Comments
Most Read Politics