United States v. Apel – Oral Argument – December 04, 2013

Media for United States v. Apel

Audio Transcription for Opinion Announcement – February 26, 2014 in United States v. Apel

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John G. Roberts, Jr.:

We’ll hear argument this morning in Case 12-1038, United States v. Apel.

Mr. Horwich.

Benjamin J. Horwich:

Thank you, Mr. Chief Justice, and may it please the Court:

Section 1382 makes it a misdemeanor for a person to reenter a military base after having been ordered not to do so by the commanding officer.

Now, the Ninth Circuit here added another requirement for conviction, which is that the defendant must be found in a place that, as a matter of real property law, is within the exclusive possession of the United States.

That requirement isn’t anywhere in the text of the statute, no court has ever given an explanation of where it comes from, and Respondent no longer defends that requirement.

Ruth Bader Ginsburg:

But it is — it is in the Air Force manual and in a JAG opinion, was the exclusive possession criterion.

Benjamin J. Horwich:

Well, I think I would say a couple things about those sources, Justice Ginsburg.

First of all, the — they reflect, essentially, conservative legal advice that recognizes that some courts had made a reference to such a requirement.

So the responsible thing to do if you’re in a JAG rendering an opinion on what the right way to structure a lease is or whether a particular place is, in fact, covered by 1382 is to confirm that, yes, this would meet the criteria that the courts have established.

But that doesn’t — certainly doesn’t make it binding on this Court and other courts have held to the contrary.

Ruth Bader Ginsburg:

Has — since this case has been pending quite a while, has the manual changed, has — to — to delete the exclusive possession?

Benjamin J. Horwich:

If Your Honor is referring to the — the U.S. Attorneys’ manual, no.

It hasn’t been altered.

Although I — I would say that the very first section of the U.S. Attorneys’ manual makes clear that it — it doesn’t — it’s not intended to create rights, it’s not intended to bind the Department of Justice or otherwise modify the meanings of criminal statutes.

It’s simply a reference guide.

And it is a reference guide that certainly would be accurate in some circuits, we think incorrect, and that’s what, of course, this Court is now in a position to resolve the disagreement between the courts on that — on that subject.

So what Respondent does argue — because, of course, Respondent isn’t even defending that requirement here, is that — and what the case then comes down to, I guess, is that Vandenberg Air Force Base is not a military installation.

Now, we think it is.

And we think all of it is.

And the reason for that is that the statute refers comprehensively to a long list of places, reservation, fort, post, arsenal, yard, station, installation, that covers the range of places that are subject to military command.

And Vandenberg is, of course, a place that’s subject to military command.

And in particular–

Elena Kagan:

How do we tell that, Mr. Horwich?

What’s the test for determining when a place is subject to military command?

Benjamin J. Horwich:

–Military command is a question of lawful authority.

What might be thought of, in a civilian context, as the extent of the commanding officer’s jurisdiction.

And so what — the way things are set up is that the civilian leadership in the Department of Defense defines spaces, and then the military commanders who are appointed by the president, then, through appointing subordinate commands, will have units assigned to particular bases, and the commanding officer of the unit will be the commanding officer of the base to which the unit is assigned.

Samuel A. Alito, Jr.:

Well, some military installations are located in very rural areas.

Now, suppose you have an installation in such a place and there are buildings and — and facilities that you can see in one part of this territory, but there’s a lot of open — there are a lot of open fields around it.

Samuel A. Alito, Jr.:

Would — and suppose there’s — it’s not posted.

Would that still be a military installation if somebody goes on that?

Benjamin J. Horwich:

It — it would, although let me say a few things about that.

Your description, actually, is pretty apt as to Vandenberg itself.

It’s in a rural area.

There are large areas of what you, I think, accurately described as open fields, that are there precisely to serve as a — kind of a buffer zone around these enormous rocket launches.

And some parts of it are particularly posted; other parts aren’t.

We do think that there would — that a defendant needs to be put on notice in some — in some respect.

We refer to it, I think, inartfully in our brief as actually that the defendant would have knowledge.

I think it’s more the defendant needs to be on notice.

And like ascertaining the extent of any geographic place, the place to look, for starters, is a map.

And if you look at a — nowadays, you go on the Internet and pull up any map, it will show you an area marked off as Vandenberg Air Force Base.

Elena Kagan:

But a map, presumably, reflects who owns the property, and you, yourself, say that that’s not what’s significant.

And I took your point in your brief to suggest some kind of more functional test, is this property being used for military purposes?

Am I — am I wrong in ascribing that to you?

Benjamin J. Horwich:

Yes, yes.

We don’t — we’re not suggesting a functional test.

What we’re suggesting is that the coverage of 1382 should be coextensive with the commander’s authority, which is, essentially, as I sort of suggested, in the nature of a jurisdictional test.

Where does the commander’s regulatory and barment authority extend to as a matter of military law?

It should be backed up by a misdemeanor sanction in 1382.

Sonia Sotomayor:

But I’m not sure that I can — that I follow that completely.

When I look at the list of items mentioned in the statute — reservation, post, fort, arsenal, yard, station, or installation — I don’t think of command separate from operational control or being run by and used by the military.

Each of those terms has an operational quality to it that mere ownership, which I equate with command, doesn’t.

It makes no sense, in answer to Justice Alito’s question, to say you need notice, unless that facility has a military flavor to it that someone could know about.

And you talk about this particular camp, but you’ve got a whole green line around it to tell people which sections you are actually considering the camp, and he was found outside of that green area.

You’ve got a public school, a public highway.

I’m not quite sure how you can keep a person off of lands that the military is not using in its operations.

Benjamin J. Horwich:

Well, I guess, just to take the last point there, I would disagree with the premise that the military is not using these lands in their operation.

I mean, to take — to take one example, there will be — there’s a launch tomorrow at Vandenberg, and the other highway that’s kind of indistinguishable from Highway 1, for these purposes, is going to be closed down because it’s in the area that’s dangerous because it’s in the potential impact zone–

Sonia Sotomayor:

Well, you close down — you close down roads for parades.

Sonia Sotomayor:

You close down areas for other public needs.

Benjamin J. Horwich:

–Certainly.

But I would be clear that the reason that is being closed down is because the commanding officer at Vandenberg has determined that that property, which is owned by the United States, is placed under his — placed under his authority as a commanding officer, is — is — is assigned to the Department of the Air Force for administration, he has determined that his military needs require closing that — that part on that day.

Anthony M. Kennedy:

And that’s confirmed in the terms of the easement, if you look at the easement between the U.S. and the County of Santa Barbara.

Benjamin J. Horwich:

Precisely so, Justice Kennedy.

Anthony M. Kennedy:

The — it makes it very clear that the military commander has authority to exercise control over the easement property.

Benjamin J. Horwich:

The — precisely so, Justice Kennedy.

And I think that gets to the bigger picture point here, which is that it would be a very odd result to say that a — that a military commander has to maximally inconvenience the public by shutting a place down at all times in order to preserve the misdemeanor sanction that backs up his authority.

Ruth Bader Ginsburg:

If — if your position is right, and I — I think there would be nothing left of Flowers, because Flowers, the government owned that area as well.

Is there anything left — I mean, that — in this case, the — the property is used as a public highway, and people go back and forth.

In Flowers, it was a street.

So are you urging that Flowers is essentially overruled?

Benjamin J. Horwich:

No, not at all, Justice Ginsburg.

In fact, I think Flowers is supportive of our position here, on the statutory point, precisely because the Court thought to resolve Flower on the constitutional grounds.

And there was no question there that it was covered by 1382, notwithstanding the fact that it is — that it could be described as a public street, it was also property that was under the command of the commanding officer at Fort Sam Houston in that — in that case.

And so the Court went to the constitutional question.

I’m happy to talk here, if the Court is interested, about the — the constitutional differences between this case and Flower.

But Flower does — does strongly imply that coverage of 1382, which the Court would ordinarily address first before reaching the constitutional question, wasn’t in doubt there, nor was it in doubt in any of the cases that this Court has decided under 1382, each of which has involved a military installation that is, to some greater or lesser extent, in some places or other, open to the public.

So–

Samuel A. Alito, Jr.:

Suppose that the Respondent in this case didn’t want to protest.

He just wanted to take a drive up to Santa Barbara or — I don’t know — maybe it’s — I don’t know — if it’s not illegal to walk in Southern California, maybe he wanted to walk along the Pacific Coast Highway.

Would he — would he commit a misdemeanor by doing that?

Benjamin J. Horwich:

–So his — the terms of his barment order and the ordinary terms on which barment orders are issued at Vandenberg is that there’s an exception carved out for him to traverse along the easement, which, again, is in the nature of a concession to public convenience, which it seems quite unfair to sort of — to say that, well, the military has wound up worse off by trying to accommodate its — trying to accommodate itself, to the extent consistent with its security needs, to public use and convenience.

Ruth Bader Ginsburg:

And where is this?

Where is the exception?

Is it — was it in the bar order?

Benjamin J. Horwich:

Yes, it’s on page 64 of the Joint Appendix.

And it’s in the middle of paragraph 2 on 64.

It says,

“Effective immediately, you are ordered not to enter onto Vandenberg Air Force Base, except to traverse. “

Benjamin J. Horwich:

meaning to travel

“to or from Lompoc and Santa Maria on Highway 1 and to and from Lompoc and Amtrak Surf Station on Highway 246. “

which passes through Vandenberg’s property.

Sonia Sotomayor:

He couldn’t go to the public school, though?

Or the stores or any other facilities that the public’s invited to?

Benjamin J. Horwich:

That’s — that’s correct.

But, of course, there’s a reason for that, which is that he has been individually identified as posing a threat to the order and security of the base.

Now, we would point out, he was barred–

Sonia Sotomayor:

It seems such an odd thing for a Class B misdemeanor to be used to protect the national security; that Congress has determined that the threat is so great, that the only thing you need is a Class B misdemeanor to protect the U.S.–

Benjamin J. Horwich:

–Well, it’s certainly not the only thing.

In our — in our opening brief, we have a footnote that runs through kind of the hierarchy of sanctions that might be–

Sonia Sotomayor:

–There are some pretty severe ones.

Benjamin J. Horwich:

So we think of this as being sort of a first line of defense, if you will.

–There are some severe ones.

Antonin Scalia:

Are there no sanctions for trespassing upon Federal property that is not a military base?

Benjamin J. Horwich:

Justice Scalia, absolutely, there are.

There’s a statute like that for the National Park Service.

There’s a statute like that for the Bureau of Land Management.

There’s a statute like that for the — for the Forest Service.

Elena Kagan:

Do you think, Mr. Horwich, that there is any point at which a military installation can lose its character as such?

I mean, I’ll give you an example.

Suppose — you know, that in this — in this base area, the government — the military decided to allow four private condo buildings and six restaurants and three movie theaters, and it really just turned into a regular old town.

And — and it entered into agreements whereby all the policing was being done by local law enforcement officers, rather than by the military.

Is there any point at which it just becomes too much not like a military base, where you lose the ability to do this, even though it’s under the formal command of a military officer?

Benjamin J. Horwich:

Well, I think, if it’s still under the formal command of the military officer and the military officer is empowered to issue regulations and issue barments, which this Court has long recognized is the necessary concomitant of the functioning of a military installation, then, no, it continues–

Antonin Scalia:

I — I assume it would be contrary to — to his orders to permit such installations, without his ability to control them.

Benjamin J. Horwich:

–Exactly–

Antonin Scalia:

Including by issuing debarment orders.

He has no authority to do that, does he?

Benjamin J. Horwich:

–No, that’s exactly right.

Benjamin J. Horwich:

So, for example, to Justice Kagan’s hypothetical — and, Justice Sotomayor, you referred to the — the school that — that is on the base.

There are couple — actually, a couple of schools on the base.

One of them is leased to a school district, but it is, nonetheless, still subject to the commander’s command authority.

The commander does respond to dangerous weapons or drugs being brought there.

And that’s necessary.

It’s right–

Elena Kagan:

So what happens, for example, at — at the school if there’s an assault on school premises?

Who deals with that?

Benjamin J. Horwich:

–In the — in the school premises, I — I believe — I don’t want to be quite certain about this, but I believe that the — well, certainly, the elementary school and I believe, also, the middle school is within the area that is — within the exclusive legislative jurisdiction of the United States.

It’s been ceded to the United States.

So the — the proper response there would need to be by Federal law enforcement.

Crimes would be prosecuted under the Assimilative Crimes Act.

Elena Kagan:

Federal — I’m sorry.

Is that military police or is that–

Benjamin J. Horwich:

No.

Elena Kagan:

–I mean, who — who comes in — is it — is it members of the military?

Or is it members of the county police force?

Or is it–

Benjamin J. Horwich:

No.

If — if we’re talking about an area that’s under the exclusive Federal jurisdiction, the military — the military police or — or security forces, as they’re now — as they’re now called, are not empowered to make arrests in that formal sense.

They can — they can detain so that law enforcement officers who are empowered to make arrests can then respond.

So, for example, if you have more common things, a traffic stop, maybe, on one of the roads off the highway or something like that, they will need to detain and wait for an appropriate — an appropriate law enforcement official to respond.

So, again, there is somewhat of a — of a different situation obtains on the highway, because there — there is authority for the — the county police, the county sheriff, for example, to respond.

So there’s — there’s a different status there.

But that’s–

Elena Kagan:

–Well, I guess I’m just wondering with respect to each of these places, I mean, the highway, the school, the Amtrak station, who’s actually in control when something goes wrong in these places?

Benjamin J. Horwich:

–Well, let me bracket off the Amtrak station because we don’t think the Amtrak station is under military command, and I’ll — I can explain why.

In the other places, it’s often the case that the first response will be by the security forces because they are in the area, and they will be patrolling.

Elena Kagan:

The security forces meaning–

Benjamin J. Horwich:

The military.

Elena Kagan:

–the military.

Benjamin J. Horwich:

Now, they will detain–

Elena Kagan:

So do military personnel actively patrol this entire area?

Benjamin J. Horwich:

–Yes.

Yes.

The — the Amtrak station I should say, though, is — is different because, there, the station and the tracks that actually run — you know, to and from the station, are actually on a narrow strip of land that is owned in fee by a railroad.

It is — it is not owned by the United States.

It’s not under Air Force Department administration.

It’s not part of the military commander’s command authority there.

So that — that part’s not covered.

So in the situation of — you know, somebody asks, well, can somebody go to the train station and take a train, if they’ve been barred, well, yes, they’re allowed to travel on the highway that goes there, and they’re allowed to wait at the train station and go.

And that arrangement, obviously, has been determined by the appropriate officials to be sufficient to protect the — the military’s interests.

If it — if it weren’t, I imagine we would see a different arrangement, but the accommodations have been made.

I think the larger point here, though, is that, if the commanding officer has the authority to issue these regulations and has the authority to issue these barments, it seems — across the whole area, which I think is not really subject to dispute here, the — as Justice Kennedy points out, the easement says he can regulate the use of the highway.

If you have that authority, why put the sanction there.

Ruth Bader Ginsburg:

It could have said — it could have said that Apel can’t use the highway.

That would — that dispensation was a matter of grace?

Benjamin J. Horwich:

Yes.

Ruth Bader Ginsburg:

Is that what you’re saying?

Benjamin J. Horwich:

Yes, it would be, in — in — in the same way that the commanding officer can determine that any particular use of the highway is inconsistent with the military’s needs.

That’s why the reservation is in there, precisely to — to reserve, as Justice Scalia suggests, the appropriate authority to the commander to do what he needs to do to run the installation.

Anthony M. Kennedy:

I suppose, if the commander thought it was necessary, he could stop trucks with flammable materials from coming through at the time when a launch is being prepared and so forth?

Benjamin J. Horwich:

Precisely so.

And — and if he — and the odd result here, under Respondent’s reading, because, of course, Respondent’s reading turns on the coverage of what “ military installation ” means, and that covers the first paragraph of Section 1382 as well, which deals with the — with enforcing regulations, the oddity of his reading is that, if a truck then did drive on the highway bringing the flammable materials, the truck would be in violation of the regulation.

But it’s sort of the sound of one hand clapping because it wouldn’t actually be a misdemeanor because the statute wouldn’t cover that part of the commander’s command area.

That incongruity is very strange.

We wouldn’t say — say, in the national parks context, if the Park Service has a rule that says you can’t feed the grizzly bears, it means you can’t feed the grizzly bears anywhere in the park.

It doesn’t mean, yeah, you’re not supposed to, but it won’t be a misdemeanor if you feed them on the road, but you — you can’t feed them off the road, and it is a misdemeanor.

That’s — that’s essentially the regime that Respondent suggests this statute–

Samuel A. Alito, Jr.:

Mr. Horwich, can I ask you this, which is — this question is stimulated by what Justice Kagan asked.

Samuel A. Alito, Jr.:

Is it — my understanding is that, if you look at many military reservations, you may need a very detailed map to figure out — and a crime is committed someplace on there or other Federal lands — you may need a very detailed map to determine whether criminal jurisdiction over that particular offense is exclusively Federal or Federal and concurrent.

Now — and I would assume that that could be true of a military base that is completely sealed off to the public.

Benjamin J. Horwich:

–That’s — I could–

Samuel A. Alito, Jr.:

Now, do you understand that the — the Ninth Circuit’s holding to be based on access or to be based on jurisdiction over crimes that are committed there?

Benjamin J. Horwich:

–No, I understand it to be based on neither of those things.

I understand it to be based on a real property analysis, which says, at this point, where Respondent was found, there is an easement, so there is a real property interest that is held by someone other than the United States; therefore, the United States does not exclusively possess it.

Antonin Scalia:

But that’s not Respondent’s theory here.

Benjamin J. Horwich:

No, it’s not Respondent’s theory here.

But if I might just say one word about the absurdities — the kind of absurdities that the Ninth Circuit’s position seems like it might lead to is that it doesn’t seem like it’s limited to easements.

I mean, Respondent, of course, as we know, wasn’t using the easement for its purpose, so it’s just sort of coincidence he’s also on the easement.

And so, on the Ninth Circuit’s approach, maybe there’s a utility easement, or maybe there’s a subsurface mineral rights that has with them an entry and egress rights or something, and I guess that also would defeat on the Ninth Circuit’s approach the application of 1382, which seems very strange.

Samuel A. Alito, Jr.:

Well, there may be — suppose property is leased to — I don’t know whether this actually ever occurs — but suppose it’s leased to the United States and used for a military reservation.

Would there be exclusively Federal criminal jurisdiction there, or would there not be concurrent jurisdiction?

Benjamin J. Horwich:

Well, the — that’s — that’s a matter that is decided under the — the Enclaves Clause of the Constitution, it says that the State has to cede to the United States–

Samuel A. Alito, Jr.:

Right.

Benjamin J. Horwich:

–that jurisdiction.

So the State has ceded to the United States that jurisdiction over — over the base.

The United States, I believe it’s correct, the United States retroceded that jurisdiction back to the State as to the highways, so that highway patrol officers could — could go along those — could go along the highways.

But that’s really a separate issue from what’s presented here because that would control the application of the Assimilative Crimes Act, for example, but this statute — this statute is not — this statute is a freestanding Federal statute.

And I would say, in the example that you give, I think this — it’s worth talking for a moment about the situation, where the United States leases property and places it under military jurisdiction and gives it to a military command.

There certainly are such places, and that’s why an ownership test isn’t quite right.

I think an ownership test, Justice Kagan, is sort of right about 95 percent of the time because it’s usually true that the United States is going to want to own the places that it puts under military command, but it’s not perfect in the leasing context.

It’s also — it’s also problematic in the situation that comes up in some of the courts of appeals cases regarding Coast Guard or naval security zones, which are designated waters adjacent to a base that are appurtenant to the commander’s authority over the base, and those aren’t kind of owned in — in exactly the same way.

But they’re, nonetheless, under military command, and the courts of appeals had no difficulty seeing that they’re covered.

Elena Kagan:

But I — I had thought that, in your brief, you thought that the ownership test was both underinclusive and overinclusive.

Benjamin J. Horwich:

Yes, I think that’s correct, too, because there are certainly property that the United States owns — plenty of property — most property that the United States owns isn’t under military command.

And so it’s not just Federal ownership, it’s — although I would — I would point out that, with respect to these other statutes that deal with other agencies of the government that — that administer lands, it is generally true — I can’t say that it’s exclusively — it’s true across the board — but it’s generally true that there’s a statute, something like this one, that corresponds to the regulatory authority of a land management agency.

So — and, again, we wouldn’t punch holes in the misdemeanor sanctions that back up those other land management agencies’ authority, so I don’t see why we would punch holes in this statute, either.

Samuel A. Alito, Jr.:

Could I just ask you what we should make of this — what we should make of this green line?

Benjamin J. Horwich:

Yes.

Samuel A. Alito, Jr.:

What is the significance of the green line?

Benjamin J. Horwich:

The — speaking outside the record, it seems like it was probably drawn to guide road crews in the parts of the road they should be resurfacing because one of the terms of the easements is that California is responsible for maintaining the road.

And so — you know, when the California Department of Transportation road crew comes out to repave it or something, they need to know how — how wide, how far are we supposed to go, so there is — there’s this green line.

There are some other green lines scattered on other places of the base in various shades of being worn down.

But they’re — I think they can be taken to demarcate the extent of the easement.

So — so on the Ninth Circuit’s approach, the green line is significant for that reason because it tells you which side is which.

But I would point out that this particular place does just lie within a road that is miles inside the actual perimeter — outer perimeter of the base.

It’s a couple of miles, as the crow flies.

It’s several miles as you travel on the road.

So it’s — it’s not as if it sort of lies out — outside of the edge.

If I could reserve?

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Chemerinsky.

Erwin Chemerinsky:

Good morning, Mr. Chief Justice, and may it please the Court:

This is a case about the right to peacefully protest on a fully open public road, in a designated protest zone.

For decades, every lower Federal court, and, for that matter, the United States itself, interpreted 18 United States Code Section 1382 to apply only if there’s exclusive Federal possession.

Any other interpretation would raise grave First Amendment issues.

As Justice Ginsburg pointed out, this case is indistinguishable from this Court’s prior holding in Flower v. United States.

Flower involved a street that was on a military base.

It involved an individual, John Flower, who was subjected to a bar order–

Anthony M. Kennedy:

But that — that was a First Amendment case and the — and the problem there was that he was barred for a peaceful protest the first time around, and that’s not — that’s not this case.

Ruth Bader Ginsburg:

Flower — Flower was with the street.

Antonin Scalia:

It was not argued in that case that the statute didn’t apply, and that’s what you’re arguing here.

Erwin Chemerinsky:

–Your Honor, there are two arguments here.

One is that 1832 — 1382 does not apply because military installation requires exclusive possession.

The second argument–

Ruth Bader Ginsburg:

On your Flowers point, I think Mr. Horwich said that — that there was no doubt that 1382 applied.

It was only a constitutional question–

Erwin Chemerinsky:

–That’s correct.

Ruth Bader Ginsburg:

–in Flowers.

Erwin Chemerinsky:

Yes, Justice Ginsburg.

But there’s no dispute in Flower that 1382 would apply because it was a street within the military base.

But to go to Justice Kennedy’s question, this Court in Albertini was very clear that what Flower means is that, when there is a fully open public route, there is a right to use it for speech activities.

Anthony M. Kennedy:

Well, that — that’s a First Amendment case.

But let’s concentrate first on — on the argument you make under this statute.

It seems to me that the statute should be construed according to normal rules of easements, and the owner of the subservient easement, the easement holder, cannot overburden that easement.

It cannot — I’ve got an easement on the back of my property for the utility company.

They can’t hold a picnic there.

They can’t do that.

Erwin Chemerinsky:

Yes, Your Honor.

Anthony M. Kennedy:

That’s overburdening the easement, and this is standard stuff.

And it’s right in the easement agreement with the City of Santa Barbara, that the police — that the military commander can make reasonable regulations.

Erwin Chemerinsky:

Your Honor–

Anthony M. Kennedy:

Now, you may — you have a First Amendment argument.

I understand that.

But let’s just concentrate on the property ownership.

Erwin Chemerinsky:

–Yes.

In terms of the easement, when an easement goes towards a public road, that easement includes the right to use the public road for speech activities.

You’re right, Your Honor, that the rule in paragraph–

Anthony M. Kennedy:

You’re back on the First Amendment case.

It — it may or may not.

If the — if the commander wants to close the base for a rocket launch, he certainly — he certainly can.

That’s set forth in article — or a condition of paragraph 4 of the easement.

Erwin Chemerinsky:

–Paragraph 4 says that there can be rules and regulations with regard to the easement.

Your Honor, those rules and regulations must be consistent with the Constitution.

For example, the commander couldn’t exclude African Americans from that road.

And that’s why the–

Antonin Scalia:

You keep sliding into the First Amendment issue, which is not the issue on which we granted certiorari.

We’re only interested in whether the statute applies.

Erwin Chemerinsky:

–But, Your Honor, in interpreting the statute, it must be done so as to avoid constitutional doubts.

Erwin Chemerinsky:

That’s why the First Amendment comes up.

Also, of course, as this Court repeatedly has held, Respondent can raise any issue that was raised below to defend the judgment, which is also why the First Amendment is here.

But Your Honor–

Antonin Scalia:

You can raise it, but we don’t have to listen to it.

Erwin Chemerinsky:

–Of course, that’s right.

Antonin Scalia:

That’s — that’s what I’m saying.

Stephen G. Breyer:

To go back to–

Erwin Chemerinsky:

Of course, Your Honor, and I will address the meaning then of “ military installation ”.

Yes, Justice Breyer?

Stephen G. Breyer:

–The difficulty that I’m having is the Ninth Circuit said the reason that your client won is because the — the piece of grass between the road and — and the sign was not — it was subject to an easement and the government lacked the exclusive right of possession.

All right.

When I saw that, I thought, well, there — there are thousands of different kinds of easement, as Justice Kennedy just said.

They’re there for utilities.

They’re for — they’re there for people who might want to — I mean, I can imagine a million, as you can, too.

So not all of those would involve First Amendment anything, and — and, yet, the — the Ninth Circuit would seem to say that your client could go and demonstrate, as long as the utility company had an easement.

So how are we supposed to interpret the statute to avoid the First Amendment problem without getting into an interpretation that, to me, would seem ridiculous.

Erwin Chemerinsky:

Your Honor, the question is what does the phrase “ military installation ” mean?

One way of defining it would be all of the property that’s owned by the United States.

But as Justice Kagan pointed out, the United States rejects that interpretation in Footnote 1 of its reply brief.

The alternative interpretation is exclusive possession, and that’s the one that all of the lower courts–

Stephen G. Breyer:

Now, why does the First Amendment allow a person to go to the heart of the military base, put on any demonstration they want, the statute doesn’t apply for the reason that, once every four months, the PG&E has an easement to go out and read the meter.

Erwin Chemerinsky:

–Your Honor, we would not take that position.

We would–

Stephen G. Breyer:

Now, that’s exactly — I know you wouldn’t–

Erwin Chemerinsky:

–That’s right.

Stephen G. Breyer:

–and that’s why I want to know what your position is as to the interpretation of the statute that avoids my absurd PG&E result, but, nonetheless, does what you want, which is to protect the First Amendment interests.

Erwin Chemerinsky:

And I think that’s exactly Justice Kennedy’s question of the difference between an easement for a public road and the easement for your backyard or the easement for a utility, and that’s why I don’t think that the First Amendment aspect of this case can be separated from the statutory aspect.

Sonia Sotomayor:

Why are you buying into the real property being the definition here at all?

I mean, it seems to me that when I read the — the other definitions of the statute, I keep going back to that it’s a function analysis and not a real property analysis because that would answer why this particular electrical meter reading — that area still being operated by the military for a military function, that’s what forts do, reservations, yards, I don’t know why we would read installation any differently.

But you’re buying into this real property as being the defining term.

Erwin Chemerinsky:

No, Your Honor, I’m not.

I completely agree with what you just said.

I think it is a functional analysis.

Here, the military has built a fence perimeter around Vandenberg.

They have drawn a green line where they said that the control begins.

On the other side of the green line is Highway 1 that anyone can drive down.

There are no signs that indicate that they’re part of the military base, and where there’s a–

Antonin Scalia:

They don’t say control begins at the green light.

To the contrary, they say they have control over the whole installation.

Do you deny that, that the — that the commanding officer has the right to control the entire installation?

Erwin Chemerinsky:

–Your Honor, there is a big difference between the authority of the commanding officer within the close confines of the base and outside the base.

For example, civilians cannot be prosecuted for what they’re doing on that public road.

They’re under the memorandum of understanding that California Highway Patrol–

Antonin Scalia:

Because — because the commanding officer agreed to that, because that’s the term of the — of the easement.

Erwin Chemerinsky:

–Yes, Your Honor, but I will go back to what Justice Sotomayor said.

There is a functional difference between the public road and the designated protest zone.

Antonin Scalia:

There may well be, but is there — is there a difference in the authority of the commanding officer?

Erwin Chemerinsky:

Well, under the memorandum of understanding, the high — the commanding officer has ceded control over that public road to the Highway Patrol — the United States wants it both ways.

Antonin Scalia:

That’s what’s crucial.

Erwin Chemerinsky:

They want the benefits of having an easement there, in the sense that the State is responsible for maintaining the road, the State is liable for any harms on the road, the State enforces crimes on the road, but they also want to claim that they have all of the control over that public road as they would within the base.

Antonin Scalia:

They’re entitled to have it both ways.

It’s their base.

And if that’s the deal — you know, take it or leave it, State.

We — we’ll give you this easement, but the — the terms are what we have said.

What’s wrong with that?

Erwin Chemerinsky:

But, Your Honor, they shouldn’t have it both ways.

Once they’ve created a public road, once they’ve created a designated protest zone, it is different, functionally, than the rest of the base.

Elena Kagan:

Well, Mr. Chemerinsky, does that mean–

John G. Roberts, Jr.:

So you raised a — you — you mentioned the green line, and Mr. Horwich represented some facts about it outside the record, quite properly alerted us that it was outside the record, I just want to give you a chance to respond to that.

Erwin Chemerinsky:

Sure.

Erwin Chemerinsky:

We know that the United States treats its easement as — its control as beginning within the green line area.

So, for example, when Mr. Apel crossed the green line previously, that was the place at which he was convicted for trespassing.

In other cases that are cited in both our briefs, lines on the road were taken as defining the area where military jurisdiction begins.

So the Sixth Circuit’s McCoy case, it was a white line, and the military said, once somebody crossed the white line, that’s where Section 1382 began.

Antonin Scalia:

But if — if your colleague is correct, that the green line marked the edge of the easement, it would be entirely proper not to — not to arrest him for violating the base until he left the easement; that is, when he crossed the green line.

It has nothing to do with the — the commanding officer saying this is the only part of the installation that we care about.

Erwin Chemerinsky:

No, it’s not–

Antonin Scalia:

It marks the end of the easement.

Erwin Chemerinsky:

–Well, you’re absolutely right, Your Honor.

The green line is taken by the United States marking the end of the easement.

And the United States, therefore, can enforce 1382, once Mr. Apel or anybody else crosses the green line.

But, when it is on the public side of the green line, on that public road, in that protest area, to go back to what Justice Sotomayor said, functionally–

Elena Kagan:

–Well, Mr. Chemerinsky, does that mean that the — the government could not have issued this barment order in the first place?

Erwin Chemerinsky:

–No, Your Honor, we do not challenge the barment order.

Elena Kagan:

Well, then I’m — I’m perplexed because if the government has sufficient commanding authority to issue the barment order to say, notwithstanding that Mr. Apel had not crossed the green line, that — you know, he just can’t be here, and he’s excluded, then why don’t they have sufficient authority to prevent him from reentering?

Erwin Chemerinsky:

In both of the instances that led to barment orders, he crossed that green line that was on the military base side, and if he does that, then 1382 applies.

Elena Kagan:

I see.

So–

Ruth Bader Ginsburg:

But the — but the barment order that Mr. Horwich just read to us says that he can use the road, but that’s not — because the road is outside the statute, that’s because the government, as a matter of grace, said right in the order, right in the bar order, you can use the road.

So there’s a sharp difference.

The government says the road is under military control, if the commander so chooses, but we’re going to let him use the road.

The government treats the — the domain as including the road, as including this protest area.

Erwin Chemerinsky:

Your Honor, there is a difference between the road and the area within the green line.

And so what I was saying to Justice Kagan is the reason why the barment orders were permissible is he crossed the green line.

Elena Kagan:

–But you’re saying that if he had not crossed the green line, he could not have been excluded?

Erwin Chemerinsky:

That’s correct.

Elena Kagan:

And you’re saying that the military cannot exclude any person from any of this area outside the green line?

Erwin Chemerinsky:

That’s correct.

1382 only applies to that which is in the exclusive possession of the United States, which is the area in the green line.

Antonin Scalia:

So we’re back to the real estate test.

Antonin Scalia:

I — I thought that you were not relying on the — on the exclusive ownership test.

You are?

Erwin Chemerinsky:

Our brief very much doubts the exclusive possession test.

Antonin Scalia:

Oh, okay.

Erwin Chemerinsky:

Though I do believe, as Justice Sotomayor said, there’s a functional reason for this.

It is the difference between the public road and the area inside–

Antonin Scalia:

So you’re defending the Ninth Circuit’s?

Erwin Chemerinsky:

–We’re very much defending–

Stephen G. Breyer:

Oh, that’s what I don’t understand.

Let me press — at the risk of repetition, the reason I’m asking this question is the record is not developed.

I looked at the Google maps.

It looked to me like this area is sort of a suburban house with a lawn in front of it, and you drive along the street, and you suspect that the street may belong to the city a little way up the lawn; but beyond that, it probably belongs to the homeowner.

And when you try to see where does the green line cross that grassy area, you can’t easily tell, and — and it may be just a foot or two.

So it may have been inconceivable that your client didn’t cross the green line or maybe he didn’t.

I don’t know.

So, therefore, you’re back to a more basic test, and you say, we agree with the Ninth Circuit that, if they do not have exclusive control, the military can’t enforce this statute.

But what do we do, which was my question, about instances where the military does not have exclusive control, but the reason it doesn’t has nothing to do with roads, nothing to do with green lines, it has to do with thousands of other easements that have nothing to do with this case; therefore, I’m pressing you to get a definition of this statute that will serve your ends without getting into all these other kinds of easements.

Erwin Chemerinsky:

–And I think the functional approach that Justice Sotomayor suggested is exactly that.

Stephen G. Breyer:

And what is that, in your view?

Erwin Chemerinsky:

I think, here, it is the area that the United States government has determined by where it’s built a fence and drawn the green line, that it has exclusive possession.

Samuel A. Alito, Jr.:

Really, Mr. Chemerinsky, I don’t mean to interrupt your sentence.

But, I mean, I may own a parcel of property, and I may put up a fence around my property, and I may not put the fence right at the very edge of the property.

I may leave a little border between the edge of my property and the place where the fence is.

Now, are you saying that I have ceded exclusive control over this area between the fence and the end of the property?

Erwin Chemerinsky:

No.

And, in fact, that’s exactly the situation here, and it goes to answering what Justice Breyer began a moment ago.

Here, what you have is a fully fenced perimeter.

About 200 yards from that fenced perimeter, where there is a gate, a green line was drawn on the ground.

On just the other side of that green line is a designated protest zone in Highway 1.

And that’s, of course, where these activities occurred.

Erwin Chemerinsky:

And what I was saying to Justice Breyer is there are reasons why every court of appeals that has considered this has adopted the exclusive possession tests.

It serves the interest of the public in giving clear notice for when they’re on a military base–

Samuel A. Alito, Jr.:

What do you mean by, “ exclusive possession ”?

Does the fence have any relevance?

What is the relevance of the fence?

Erwin Chemerinsky:

–Well, the fence is tremendously relevant, in determining where the government believes the military installation begins, and also, it’s very important in terms of national security.

Samuel A. Alito, Jr.:

But there are bases that have no fences.

So what, there?

None of that is under the exclusive possession of the government?

Erwin Chemerinsky:

No, Your Honor.

The government gets to decide the area of exclusive possession.

So take the Greer case as an example.

In Greer, this case emphasized that Fort Dix, even though it was open, still was in the exclusive possession.

In fact, the first paragraph of this Court’s opinion in Greer says, “ exclusive possession ”.

Maybe the analogy that is closest to this case, then, is this Court’s decision in United States v. Grace, where this Court drew a distinction between the sidewalks that run outside this building and the building itself.

And the Court said, as to those sidewalks, even though they abut the Supreme Court, it still is open for speech purposes.

Sidewalks, public roads are inherently open–

Samuel A. Alito, Jr.:

I’m still completely confused about the test that you are asking us to — to apply.

Either — either fences are relevant or they are not relevant.

If you can have exclusive governmental — exclusive military possession of a base where there are no fences, I don’t really see what the significance is of the fence here.

That’s just — that’s just for starters.

Erwin Chemerinsky:

–Obviously, the fence is significant, in terms of answering the government’s concerns with regard to national security.

I think the fence is also important to go, to Justice Sotomayor’s point, with regard to the functional approach.

My answer to your question–

Antonin Scalia:

Excuse me.

What about the portion of the base on the other side of the road easement, where the government does have exclusive possession?

Erwin Chemerinsky:

–Well–

Antonin Scalia:

Is that okay?

That’s still part of the base.

Erwin Chemerinsky:

–But what’s interesting, as was pointed out–

Antonin Scalia:

Yes or no, under your theory?

Erwin Chemerinsky:

–The government does not have not exclusive possession there.

There is a public school there, for example, that anyone can drive and go to.

One of the consequences of the government’s interpretation of 1382 is that, if Mr. Apel had a child attending that public school, he could not go pick up his child at school, but you or I or anyone else could drive–

Antonin Scalia:

That may be very bad, but is it bad because the government does not have exclusive possession of every–

Erwin Chemerinsky:

–Yes.

Antonin Scalia:

–You know, when you talk about the road, they’ve given an easement, so you can say, oh, yeah, they don’t have exclusive possession.

But the other side of the road, that vast tract, you are saying the government, what, does or does not have exclusive possession?

Erwin Chemerinsky:

The government does not have exclusive possession.

Antonin Scalia:

Then the word “ possession ” means nothing.

Erwin Chemerinsky:

The–

Antonin Scalia:

You are — you are applying solely a functional test.

It only possesses that which it is using for military purposes.

That is not a possession test.

It’s a purely functional test.

Erwin Chemerinsky:

–But, Your Honor, Congress didn’t, in 1382, say,

“all land owned by the military. “

It used the phrase “ military installation ”, and whenever that phrase has been defined, it always refers to the area that is reserved to be used for military purposes.

The United States can draw the green line and build the fence wherever it chooses.

Here, it decided to do so in a particular place, leaving open a fully open public road with a designated protest zone.

Sonia Sotomayor:

I’m sorry.

I have the same problem that Justice Breyer has.

PXes belong to the military, generally, the land, but they are run by outside contractors, sometimes.

Are you saying because they’ve given up exclusive control of the PX, that they fail your test?

So does the utility company.

I don’t know if it’s possible that military bases generate their own utilities, but I presume that, somewhere, they don’t, and they have an easement to drive up and read their meters.

There may be easements for repairs of certain underground things that — that supply the base.

That’s not exclusive control, so I’m — or possession.

So what — what does your test mean?

Erwin Chemerinsky:

It is where the United States chooses to exercise exclusive possession.

Erwin Chemerinsky:

The United States, for example, in Greer, said, we are claiming we have exclusive possession over the entire area of Fort Dix, even though there was a public road.

If the government wants to say, even as to the PX within Vandenberg, that’s within our exclusive possession, it can do so.

But the government, by granting the easement, by allowing the public road, by creating the designated protest zone, has done something very different than exclusive possession.

Sonia Sotomayor:

So that — that road for the public utility for which there is an easement of travel is not exclusive to the U.S.?

So anybody can travel into the base at any time they want to?

Erwin Chemerinsky:

No, Your Honor, because in order to come on to that utility easement, you would need the express permission of the base commander.

So that utility easement would still be an exclusive control, to go to Justice Breyer’s question.

John G. Roberts, Jr.:

You need the express permission of the base commander to drive down the road.

It’s just that he has given it to the public at large.

Erwin Chemerinsky:

Well, Your Honor, everyone has the authority to drive down that road.

Somebody who–

John G. Roberts, Jr.:

Because it’s been ceded by the United States for the convenience of the traveling public.

Erwin Chemerinsky:

–Exactly.

And then the question is once the United States has ceded the easement, under 1382 can a person be prosecuted?

And once the United States has ceded that easement, does it violate the First Amendment in light of this Court’s decision in Flower to prosecute–

John G. Roberts, Jr.:

I thought you just answered the question from Justice Sotomayor by saying, no, no, the utility easement doesn’t work because the military commander has not granted permission to anybody else to use that easement.

Here we have a public road easement, and you said that’s different.

And my question was: No, it’s not, because the military commander has given permission to use easement.

Now, I want to know what distinguishes the two cases.

Erwin Chemerinsky:

–And this goes to Justice Kennedy’s question earlier if we are talking about an easement.

An easement that is created for a public road inherently has free speech rights attached to it.

In fact, many lower court cases have always said an easement for a public road includes the right to use it for speech purposes.

That is very different than an easement that exists for purposes of a utility.

Antonin Scalia:

It seems to me a First Amendment argument and not an argument that goes to the scope of Section 1382.

Erwin Chemerinsky:

No, Your Honor, because you need to interpret the statute to avoid the constitutional issues.

If you interpret the statute to allow excluding speech on this public road easement in the designated protest zone, then interpreting the statute that way would raise grave First Amendment issues.

Antonin Scalia:

So you are saying we should read the statute to say it only applies when it doesn’t violate the First Amendment.

Of course we’d read it that way.

Erwin Chemerinsky:

Of course, you should read it that way.

Antonin Scalia:

But not because it has anything to do with the scope of authority of the government.

Antonin Scalia:

It’s what the government can do.

I — I don’t know how to read that, that text, in such a way that it will avoid all First Amendment problems.

There is no way to do that.

Erwin Chemerinsky:

I disagree, Your Honor.

I think that the reason that every lower court and the United States government itself have read “ military installation ” as exclusive possession is that otherwise it would raise First Amendment problems.

Samuel A. Alito, Jr.:

Well, you are arguing that the military cannot grant an easement across a military installation for the purpose of allowing the public to drive from a point, let’s say, to the south to a point to the north, without also granting an easement that would allow people to linger along the road and engage in First Amendment activity.

Is that your argument?

Erwin Chemerinsky:

No, it is not, Your Honor.

Samuel A. Alito, Jr.:

Because I can understand why the military might be willing to say, well, fine, we understand that it would be very inconvenient to make everybody drive around the installation.

We’ll allow them to drive through, but we do not want people lingering here because that does create security concerns.

Erwin Chemerinsky:

No, Your Honor, that is not my position.

If the government wanted to have a closed base and say, we’re going to allow this road to go through, but there were signs to let everyone know they were still on the closed base, there were guards that were there, that is Greer.

That is not this case, and that’s not Flower.

Elena Kagan:

Your — your argument is sort of a use it or lose it argument, is that correct?

That the government has this commanding authority, unless the government uses it to its full extent every day of the week, it loses it?

Erwin Chemerinsky:

Well, in a sense, yes, Your Honor.

The sense is that the government gets to decide where to draw the green line.

The government gets to decide where to put the fence.

And when they decided to create a public road with a protest zone outside of it, then to interpret 1382 applied, as I said to Justice Scalia–

Elena Kagan:

One of the arguments that the government makes is, look, what the military wants to do here is something very sensible.

It keeps tight what it needs to keep tight, but it allows to be more open areas that can — that it — it doesn’t have an interest in securing entirely.

And that’s for the convenience of military personnel.

It’s for the convenience of other people who live around the base.

What’s wrong with that?

Erwin Chemerinsky:

–Your Honor, what’s wrong with that is there is no need to exclude peaceful protesters from the public road in a protest zone in order to achieve the national security interest of the government.

John G. Roberts, Jr.:

Well, that’s usually the sort of determination that’s left to the military commander.

I can think of a lot of reasons why the commander would not want a gathering of people on the road but would be willing to let people drive through the road.

Erwin Chemerinsky:

That’s exactly right, Your Honor.

The military commander gets to decide that.

But by creating a designated protest zone outside of that, it’s indicative that the military commander doesn’t perceive any national security threat from allowing a gathering there.

John G. Roberts, Jr.:

Well, it indicates, as the — the barment order does, that he does see some kind of threat by allowing somebody in there who’s vandalized the base in the past.

Erwin Chemerinsky:

Your Honor, but we — this Court has never said there’s a permanent forfeiture of First Amendment rights because somebody misbehaved at one time.

John G. Roberts, Jr.:

Is there — can there be a temporary forfeiture of First Amendment rights?

Erwin Chemerinsky:

Of course there can be.

People can be in prison and lose their First Amendment rights.

There can be restraining orders issued.

John G. Roberts, Jr.:

Well, I’m talking about what this case is about, which is the temporary exclusion.

Would your case be the same if Mr. Apel was barred for one year?

Erwin Chemerinsky:

Well, he can be barred from coming onto the base, as drawn by the green line, for one year of–

John G. Roberts, Jr.:

No, he can traverse it.

He can traverse.

There — there’s no question of that.

Could he be barred from participating in protests for a year because he vandalized the base?

Erwin Chemerinsky:

–Yes, Your Honor, a sentence could include that.

There’s no doubt that there could be, or if somebody was perceived–

John G. Roberts, Jr.:

Now here, as I understand it, he was barred permanently subject to the right of him to apply for removal of the barment.

Erwin Chemerinsky:

–That’s correct, Your Honor.

There is the ability to appeal a bar order to the commander.

Stephen G. Breyer:

It’s more than that.

It says I mean, you know, if you wanted to take someone to school.

It said — first, if you need medical treatment, you can just go in, and then it said you — you have to receive prior written approval from me, the commander, or my designee, but if you get it.

So I suppose if he had a child at the school, he would ask and they’d give it to him.

I mean, it didn’t seem to me an absolute bar.

It seemed to me a bar for purposes of going to that particular–

Erwin Chemerinsky:

He can ask the commander of the base who issued the bar order for permission to use it.

Your Honors–

Stephen G. Breyer:

–Do we have to get into any of that?

Do we — just like I don’t know where he really was physically.

I don’t know whether that grass strip is within something, without something.

These all sound like First Amendment relevant matters.

Erwin Chemerinsky:

–But they’re also relevant to the statute.

They’re relevant to interpret the statute to avoid constitutional doubt.

They’re relevant because–

John G. Roberts, Jr.:

To avoid — just to interrupt — to avoid grave constitutional doubts.

Erwin Chemerinsky:

–Yes, Your Honor.

And, Your Honor, also, since every other court has interpreted the statute as we’re suggesting, there’s at least ambiguity, which under the Rule of Lenity means it has to be construed in favor of a criminal defendant.

Like so many cases to come before you, this one is about where do you draw the line.

Here the government has drawn the line and it’s a green line.

Now, on this side of the green line, there is a First Amendment right to speak.

John G. Roberts, Jr.:

I’m sorry, the Rule of Lenity you said in favor of a criminal defendant.

Erwin Chemerinsky:

Yes, Your Honor.

John G. Roberts, Jr.:

We’re talking about barment here.

Is that a criminal sanction?

Erwin Chemerinsky:

1382 is the criminal statute that he was convicted of violating.

John G. Roberts, Jr.:

Right, but this doesn’t — you’re not allowed to collaterally attack the barment decision.

Erwin Chemerinsky:

No, Your Honor.

What we’re saying is you have to interpret the words “ military installation ”.

There are two different interpretations or perhaps more has come out.

What we’re saying is you have to choose the interpretation that favors the criminal defendant.

So we are using the Rule of Lenity relative to interpreting the statute, and that’s why we believe that both in terms of the statute and in terms of the First Amendment, the Ninth Circuit should be affirmed.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Horwich, five minutes remaining.

Benjamin J. Horwich:

Thank you.

Just a couple of points.

I — I think the colloquy with my friend sort of shows that taking this functional approach to where the statute applies day to day, place to place, is really just not going to prove workable.

And we have to remember, this is a misdemeanor prosecution.

This is not something that should entail an extremely extensive subtle inquiry that is going to vary from place to place.

So I think that that shows the wisdom of what the Court said in the Benson case, which we quote at page 15 and 16 of our reply brief, which explains.

It says that:

Benjamin J. Horwich:

“When a tract has been legally reserved for military purposes, courts follow the action of the political department of the government and will not inquire what the actual uses to which any portion of the reserve is temporarily put. “

As for the Ninth Circuit’s approach, which is this sort of real estate-based analysis, I think there have been a number of hypotheticals offered that show why that’s going to produce some borderline absurd or entirely absurd results.

And so that’s why we come back to again respecting the decision to place — to place the installation under military command and that Section 1382 provides the sanction to enforce the orders entered pursuant to that lawful command.

I might say one word about the green line and its relevance.

My friend says that it is sort of the threshold across which 1382 applies or doesn’t apply.

The relevance in a 1382 prosecution of the green line comes in a prosecution under the first paragraph for violating a regulation.

At Joint Appendix 51, there’s the commander’s order closing the base, and what it says is:

“Pursuant to my authority, Vandenberg Air Force Base is a closed base. “

“General rule covering the entire command authority. “

Paragraph 2:

“The roadway easements through Vandenberg have limited use as provided. “

et cetera, et cetera.

“Use and occupation is for these purposes only and is subject to any rules and regulations the installation commander may prescribe. “

and so forth.

So what the green line is, is it’s defining the boundary between the closed base, the generally closed base, and the road, which is open.

So that is what ensures that someone who is driving on the road is not committing an offense against the commander’s regulations, if they are just an ordinary member of the public.

And, of course, if they cross over the line, then they are violating the closed base regulation if they don’t have the commander’s permission to cross that line.

So the — what is different, of course, about Respondent is that he’s been barred from the base.

So the rules that apply to the general public don’t apply to him.

Of course that’s the very purpose of the second paragraph of Section 1382, is to recognize that commanders can make individualized determinations that the rules that work generally for the public don’t work for particular people who show themselves to be willing to vandalize government property or disobey the instructions to remain within the areas that they may lawfully be present in.

And, of course, that’s the basis for why Respondent was barred.

Elena Kagan:

May I just ask a background question, Mr. Horwich?

What’s the history of this First Amendment area?

What — when did this speech area come into being?

Benjamin J. Horwich:

There was a settlement of litigation with the commander in the late 1980s.

It’s in the — it’s reproduced — part of it is reproduced in the Joint Appendix — which I guess shows a couple — in which the commander agreed that there would be a place on the base where–

Elena Kagan:

Was the litigation essentially like this one, basically saying that this was not under military command?

Benjamin J. Horwich:

–To be honest, I’m not familiar with the particular legal contentions there.

But I think what the settlement does show is that if it’s the commander who is authorizing this, the commander remains in charge of this.

And of course, the current protest policy which is reproduced in the Joint Appendix is quite clear that the commander retains authority to — and can control the time and place of the protests, and of course makes it clear that people who are barred can’t come back.

Benjamin J. Horwich:

So on that point, with respect to the constitutional avoidance argument, I think, as the Chief Justice pointed out, it needs to be a serious constitutional doubt.

And I think what this Court has said in Virginia v. Hicks puts any of those doubts to rest.

The Court said in that case that the First Amendment permits, quote,

“the punishment of a person who has, pursuant to lawful regulation, been banned from a public park. “

–so I think a fortiori a military base —

“after vandalizing it and who ignores that ban in order to take part in a political demonstration. “

The Court — so the Court I think has already settled this.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.