United States v. Apel
571 U.S. ___ (2014)

Annotate this Case

SUPREME COURT OF THE UNITED STATES

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No. 12–1038

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UNITED STATES, PETITIONER v. JOHN DENNISAPEL

on writ of certiorari to the united states court of appeals for the ninth circuit

[February 26, 2014]

     Justice Ginsburg, with whom Justice Sotomayor joins, concurring.

     I agree with the Court’s reading of 18 U. S. C. §1382: The military’s choice “to secure a portion of the Base more closely—be it with a fence, a checkpoint, or a painted green line—does not alter the boundaries of the Base or diminish the jurisdiction of the military commander.” Ante, at 11. But a key inquiry remains, for the fence, checkpoint, and painted line, while they do not alterthe Base boundaries, may alter the First Amendment calculus.

     When the Government permits the public onto part of its property, in either a traditional or designated public forum, its “ability to permissibly restrict expressive conduct is very limited.” United States v. Grace, 461 U. S. 171, 177 (1983) . In such venues, the Government may enforce “reasonable time, place, and manner regulations,” but those regulations must be “content-neutral [and] narrowly tailored to serve a significant government interest.” Ibid. (internal quotation marks omitted).

     The stated interest of the Air Force in keeping Apel out of the area designated for peaceful protest lies in ensuring base security. Brief for United States 22–26. See also Reply Brief 21–22. That interest, however, must be assessed in light of the general public’s (including Apel’s) permission to traverse, at any hour of the day or night, the highway located a few feet from the designated protest area. See Appendix to opinion of the Court, ante (displaying maps of the area). The Air Force also permits open access to the middle school, bus stop, and visitors’ center, all situated in close proximity to the protest area. See ante, at 2.

     As the Air Force has exhibited no “special interes[t] in who walks [or] talks” in these places, Flower v. United States, 407 U. S. 197, 198 (1972) (per curiam), it is questionable whether Apel’s ouster from the protest area can withstand constitutional review. The Court has properly reserved that issue for consideration on remand. Ante, at 13. In accord with that reservation, I join the Court’s opinion.

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