JURIST Guest Columnist David Gespass of Gespass and Johnson argues that the US Supreme Court should elevate substance over form and preserve freedom of speech…<

Government officials have learned, over many years, that the best way to restrict civil liberties is piecemeal. If one wants to take some salami without it being noticed, one takes a thin slice. Over time, with enough thin slices, the salami is gone. So, too, with our rights.

Take the following scenario. A single individual, who has been annoying authorities with peaceful protests chooses to demonstrate on a public road. He poses no threat and does not interfere with anyone engaged in any business. However, because of past acts involving alleged trespass, he is told that he cannot even protest on the public right-of-way. Relying on the First Amendment, he does and is prosecuted. Would that not seem, on its face, to violate one of our most fundamental rights, the right to free speech via public petitioning for redress of grievances? Is it credible that, in the US, courts would permit such a restriction? Of course, they would.

Following the September 11, 2001 attacks on the Pentagon and World Trade Center, our country was introduced to a new concept, “Free Speech Zones.” Those were the places—usually out of sight and hearing of officials to whom protests were being directed—that the federal government designated for protesters to exercise their rights. During the Vietnam War, not to mention the Civil Rights Movement, no one would have dreamed of holding a march or demonstration that did not directly confront its target. Back then, everywhere from Canada to Mexico and the Atlantic to the Pacific, as well as Puerto Rico, Alaska and Hawaii, was a free speech zone. There were limited exceptions to that rule. Inside libraries, public schools and university classrooms when classes were in session and the steps of the US Supreme Court, as examples, were places where protests were not permitted. Places where one can protest are now becoming the exception and often require difficult, time-consuming and expensive litigation for their preservation.

Time was, we could picket outside grocery stores that sold grapes and lettuce picked by non-union labor. Now, they are located in shopping centers, which are deemed private property, the owners of which are free to exclude picketers. Indeed, as far back as 1946, in Marsh v. Alabama, the Supreme Court held that a town, Chickasaw, Alabama, owned by a private company but otherwise just like any other town, could not limit the exercise of people’s constitutional rights within its borders. Now, even public lands are becoming, as it were, free speech free zones.

While the events of 9/11 accelerated the process, the changes did not happen all of a sudden. That day just allowed the government to slice off an unusually large piece of salami. But restrictions continue to mount up, and punishments for violating them become more severe, while too many of us are willing, as Ben Franklin feared, to sacrifice essential liberty for the illusion of security.

Which brings us back to where we began, with the case of one John Dennis Apel. He regularly protested at Vandenberg Air Force base in California, often getting in trouble with the base commander and, if the military is to be believed, trespassing onto secure base property. However, Vandenberg has two state roads running through it. They are maintained by the state of California for the use of the general public without restriction. There is an intersection which contains a middle school, a bus station and a visitor’s center, as well as an area designated by the base commander for peaceful protest. Apel often, it would appear, left the designated area and was prosecuted for trespass. For his troubles, he eventually was completely barred from the base, including the road open to pretty much everyone else in the US.

He thereafter protested several times within the “free speech zone” the base commander had established, was arrested, prosecuted and, eventually, the case made its way to the US Supreme Court, perhaps not for the last time. A unanimous court found (PDF) that the base commander had jurisdiction over the entire base, including those roads made open to the public. It found Apel’s argument that 18 U.S.C. &#167 1382, the statute making it a crime to enter a military installation after having been ordered not to, applied even to those parts of bases over which some other authority, such as the State of California, exercises jurisdiction. This was, it must be admitted, a pretty thin slice of salami. It is not unreasonable, at first blush, to conclude that every part of a military installation is under the jurisdiction of the base commander.

If one delves a bit deeper, however, even this restriction is troubling. The court chose to “decline Apel’s invitation to require civilian judges to examine US military sites around the world, parcel by parcel,” categorizing the claim as a some overwhelming task that our poor jurists are unable to undertake without giving up all hope of leisure or hearing other cases. In fact, all they were invited to do was to find that a public right-of-way is open to the public and that the members of the public who use it enjoy their constitutional rights while doing so. If there is one burden the US Supreme Court should gladly undertake, it is protecting and preserving rights guaranteed under the Constitution.

One ray of hope shone through in Justice Ruth Ginsburg’s concurring opinion, which held that First Amendment considerations might still render the exclusion of Apel unconstitutional. Justice Samuel Alito cast a bit of a shadow over that ray by stating that it was not an issue before the court and, thus, there was no reason to comment on it. The ultimate outcome remains in doubt, but the underlying concern does not. Apel was ordered to stay off a public road and a “free speech” area, traversed daily by uncounted numbers of people unconnected with the US military because that road goes through a “military installation.” It is by no means certain that his prosecution for engaging in protected speech in a designated area will be found unconstitutional. The trend, certainly, is not encouraging. The willingness of the court to ignore or, at least, defer to another day, the important, substantive issue of free speech and cling to the technical issue of whether a base commander has jurisdiction over a public thoroughfare running through the base is more than troubling. It reveals a US Supreme Court that prefers form over substance and is more and more willing to restrict constitutional rights not just on private lands, but now on public ones too. The specter we face is that the entire country, except for small, isolated little plots, will be, like the steps of the US Supreme Court, barren of dissent and protest in favor of presumed security and the zombie-like silence of sheep.

David Gespass is the immediate past president of the National Lawyers Guild. In 1973 and 1974, he worked for the NLG Military Law Office in Yokosuka and Okinawa, Japan. After returning to the US, he was one of the founding members of the Military Law Task Force and continues to serve as a member of its steering committee.

Suggested citation: David Gespass, US v. Apel: A Piece of Salami, JURIST – Professional Commentary, Apr. 3, 2014, http://jurist.org/hotline/2014/04/david-gespass-free-speech-zone.php.