“[W]e Don’t Have to Listen . . .”

Dispatch from on high: SCOTUS has just held that the right to exclude applies to government owned property the same as to privately owned one. The right to exclude strangers from one’s property is a core attribute of private property ownership. But what if the property is publicly owned? Same thing. Ah, but what if the government does allow some entry by the public for specified, limited purposes?

SCOTUS’ answer is that the same rule applies; the government may limit the right of entry to the specified purposes, and no more. As  Lyle Dennison put in in the SCOTUS Blog, “Military authority within the outer boundaries of a base, [Chief Justice] Roberts wrote, does not ‘change when the commander invites the public to use a portion of the base for a road, a school, a bus stop, or a protest area, especially when the commander reserves authority to protect military property by, among other things, excluding vandals and trespassers.’ ” Military commanders must have full authority to control all activities on their bases, and that is not subject to being challenged by any Tom, Dick or Harry, and second-guessed by judges.

This case involved the review of the conviction of a protester given to demonstrating at the Vandenberg Air Force Base in California, when he refused to leave when so ordered.

Though garbed in the usual legalistic verbiage, the essence of the court’s opinion in United States v. Apel was simplicity itself. When the government allows a public road through a military base, that does not permit members of the public to use it for purposes other than access. Which strikes us as similar to private law of easements and licenses.

But wait a minute, said the protester, what if I want to use that road to stage a protest against government military activities? Doesn’t the First Amendment then entitle me to do my protest thing? We ain’t saying, replied the court, because you didn’t raise that legal issue in your petition. So go back to the lower court and ask “Mother, may I?” in a proper way. So stay tuned, folks. We have a feeling this case will be with us again.

In case you are wondering what the title of this post has to do with its content, here goes. The lawyer for the protester, was Dean Erwin Chemerinsky of the University of California Law School (Irwine) and we find one of his exchanges with — who else? — Justice Scalia, to be of special comedic and personal interest. It went like this:

JUTICE SCALIA: “You keep sliding into the First Amendment issue, which is not the issue” on which the court accepted the case, Justice Antonin Scalia said. “We’re only interested in whether the statute applies.”

Chemerinsky insisted that the statute in issue must be considered in tandem with the petitioners’ speech rights.

Scalia’s reply,  in haec verba: “You can raise it, but we don’t have to listen to it.”

Which reminds us of our own misadventure in oral argument in the wretched Agins v. Tiburon case in which in 1980 your faithful servant tried vainly to get the Justices to address the main issue of the case, namely whether “just compensation” rather than specific relief was the proper remedy for regulatory takings, the same as for physical ones. After all, denial of monetary remedy was the holding of the California Supreme Court that was being reviewed in Agins. But if you are a reader of this blog, you no doubt know that the court ducked that issue and held instead that the case wasn’t ripe.

But as the Agins oral argument wended its merry way, Justice Byron White, looked your faithful servant in the eye, smiled, and said: “You can’t cram issues down our throats that we don’t need to decide.” The cold record reminds us that we had the presence of mind to respond “That would be beyond my meager powers, Your Honors.” So welcome to the club, Dean Chemerinsky. When we are admitted into their Lordships presence for oral argument purposes, there is a division of labor. We talk and they listen — or maybe they don’t, depending on how the spirit moves them.

Of course, since you, dear reader, may not be a fully credentialed member of the regulatory takings mafia, allow us to bring to your attention the fact that, as it turned out, their Lordships were wrong — not because we say so, but because they eventually said so themselves. First, in the First English Evangelical etc. Church v. County of Los Angeles case (which was no riper than Agins)  they held on the merits that, yes indeed, on the issue of remedies for non-physical, regulatory takings, we were right and the California Supreme Court was wrong in Agins when it (a) denied that there is such a thing as a regulatory taking, and (b) denied a monetary remedy for such a taking which it rechristened as a “deprivation” of property. Then, a bit later, to put an intellectual cherry on top of this grotesque sundae, SCOTUS confessed again (this time in the Lingle case) that it was wrong in Agins where it also held out of the blue that a taking results when the challenged regulation does not advance a legitimate public interest — that issue implicates substantive due process, not the taking clause as they erroneously asserted in Agins.

So the bottom line of this case is two-fold. First, to paraphrase a line of Gertrude Stein, a road is a road is a road — not a protest staging plaza that can be commandeered by any irate citizen, and second, If you want to argue the scope of the First Amendment applicability to your activities on such a road, you better raise it as an issue properly.





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