United States v. Apel is about property rights, not the First Amendment

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Last week the United States Supreme Court heard oral arguments in United States v. Apel — a case which has a number of free speech advocacy groups up in arms. But as Justice Scalia repeatedly pointed out during oral argument, the First Amendment is not at issue in the case. To understand this confusion, a little background information is helpful.

In 2003, Apel was arrested on a southern California Air Force base for vandalism and trespassing. As a result, he was issued an order forbidding him from reentering the base. In 2010 he returned to the base to participate in a protest that was occurring in a designated free speech zone adjacent to Highway 1. At that point, he was arrested for violating Section 1382 of Title 18 of the US Code — a law which makes it a misdemeanor to re-enter a military base after being issued an order not to re-enter. Apel sued, and the case has now found its way to the US Supreme Court.

To the passive reader, an arrest of a protester in a “free speech zone” rightly sends up red flags. However, no First Amendment claim was before the Supreme Court in this case. Nor could it be. The First Amendment prevents the government from arresting a person for what he says. Apel was arrested for going somewhere he wasn’t permitted to go.

Rather than argue the First Amendment, Apel has argued that the Air Force has no authority to exclude him from the free speech zone along the highway because, in his view, the highway lies outside the jurisdiction of the Air Force. According to Apel, the existence of the public highway implies that individuals have the right to stand along the highway for protests. Thus, by allowing the highway to run through the base, the Air Force forfeited its right to exclude protesters from that portion of its property. In other words, this case turns on the right to exclude individuals from private property.

If the area at issue were an ordinary public highway, Apel’s assertions would be correct. It is well established that individuals have the right to peaceably assemble along public roads and sidewalks despite the fact that those roads are owned by the government and may abut government buildings. However, the section of the highway at issue is not an ordinary public highway. Unlike a standard road, the portion of Highway 1 that runs through the base exist solely as the result of an easement.

An easement is an agreement whereby a property owner maintains possession of the property but agrees to allow a specific individual or group of individuals to use the property for a specific purpose and subject to certain conditions. Here, the Air Force granted a the state an easement for the purpose of vehicular traffic. The terms of that easement make clear that the road is to be used for vehicular traffic and that the Air force maintains the right to exclude anyone from the easement when it deems it to be in the security interest of the base.

Certainly, once the public has been granted access to the road via such an agreement, the Air Force could not exclude an individual from using the easement in the agreed upon manner solely because of his political viewpoints. Such arbitrary discrimination would violate the First Amendment. However, Apel was not barred from the base because of his viewpoint. Nor was he barred from continuing to use the road for vehicular traffic. He was barred from standing along the side of the road within the boundaries of the Air Force base because he had vandalized its facilities. Whether the Air Force had the right to exclude him has nothing to do with the First Amendment.

A decision is expected within the next several months.

The Sacramento and Los Angeles property and land use lawyers at Kassouni Law are passionate about protecting Constitutional property rights. Call 877-770-7379 if you are experiencing a similar legal matter. Our lawyers will be happy to listen and assess the merits of your case.

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