In the UNITED STATES OF AMERICA, Petitioner, v. JOHN DENNIS APEL, Respondent.

Transcription

1 No In the UNITED STATES OF AMERICA, Petitioner, v. JOHN DENNIS APEL, Respondent ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF AMICUS CURIAE OF GROUND ZERO CENTER FOR NONVIOLENT ACTION IN SUPPORT OF RESPONDENT Christine M. Salmi Counsel of Record PERKINS COIE LLP 1111 West Jefferson Street, Suite 500 Boise, ID John R. Tyler PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA Counsel for Amicus Curiae Ground Zero Center for Nonviolent Action

2 i TABLE OF CONTENTS Page INTEREST OF AMICUS CURIAE... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 6 I. ADOPTING THE GOVERNMENT S INTERPRETATION OF SECTION 1382 WOULD MAKE THE STATUTE UNCONSTITUTIONAL AS APPLIED TO PROTESTERS LIKE GROUND ZERO... 8 A. Like Mr. Apel, Ground Zero Members Protest Activities Occur on a Public Road in a Designated Protest Area Outside a Closed Military Installation... 8 B. The Public Road Where Ground Zero s Speech Occurs Is a Quintessential Public Forum C. At the Very Least, Ground Zero Demonstrations Occur in a Designated Public Forum D. No Significant Government Interest Exists to Justify Restricting Ground Zero Members Speech Within the Designated Protest Area... 20

3 ii TABLE OF CONTENTS Page E. The Government s Interpretation of Section 1382 Is Not Narrowly Tailored to Its Purported Interest in Safety F. The Government s Greater- Includes-The-Lesser Argument Cannot Justify a Speech Restriction G. The Government s Interpretation of Section 1382 Would Entirely Restrict the Ability to Demonstrate of Certain Ground Zero Members II. THE GOVERNMENT S INTERPRETATION MAKES THE STATUTE UNCONSTITUTIONALLY VAGUE A. The Due Process Clause Requires Laws to Provide Fair Warning B. Ground Zero Members With Barment Letters Would Lack Fair Warning of Possible Violation of Section 1382 if the Court Adopts the Government s Interpretation CONCLUSION... 36

4 iii TABLE OF APPENDICES Page Addendum A Aerial Photograph of Ground Zero Demonstration Area... Add. 1 Addendum B Aerial Photograph of Ground Zero Demonstration Area... Add. 2 Addendum C Map of Demonstration Area... Add. 3

5 iv TABLE OF AUTHORITIES Page CASES Ark. Educ. Television Comm n v. Forbes, 523 U.S. 666 (1998)...14, 17 Bay Area Peace Navy v. United States, 914 F.2d 1224 (9th Cir. 1990) Carey v. Brown, 447 U.S. 455 (1980) Christian Legal Society v. Martinez, 130 S. Ct (2010) Coates v. City of Cincinnati, 402 U.S. 611 (1971) Colautti v. Franklin, 439 U.S. 379 (1979) Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568 (1988)... 7

6 v TABLE OF AUTHORITIES Continued Page FCC v. Fox Television Stations, Inc., 132 S. Ct (2012) Flower v. United States, 407 U.S. 197 (1972) (per curiam) Greer v. Spock, 424 U.S. 828 (1976)... 14, 15, 16 Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939) City of Madison, Joint Sch. Dist. No. 8 v. Wis. Employ. Relations Comm n, 429 U.S. 167 (1976) Marks v. United States, 430 U.S. 188 (1977) Perry Educ. Ass n v. Perry Local Educators Ass n, 460 U.S. 37 (1983) Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) U.S. v. Lanier, 520 U.S. 259 (1997)...32, 36

7 vi TABLE OF AUTHORITIES Continued Page United States v. Albertini, 472 U.S. 675 (1985)... 16, 22, 27 United States v. Allen, 924 F.2d 29 (2d Cir. 1991)...22, 25 United States v. Grace, 461 U.S. 171 (1983)... 12, 13, 14, 16 United States v. Parker, 651 F.3d 1180 (9th Cir. 2011)...22, 25 United States v. Ventura-Melendez, 275 F.3d 9 (1st Cir. 2001). (Pet. 15)...22, 25 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) Ward v. Rock Against Racism, 491 U.S. 781 (1989) Widmar v. Vincent, 454 U.S. 263 (1981) Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008)... 21

8 vii TABLE OF AUTHORITIES Continued Page STATUTES 18 U.S.C U.S.C. 795, U.S.C U.S.C U.S.C U.S.C passim 18 U.S.C U.S.C. 2387, U.S.C OTHER AUTHORITIES 1

9 1 INTEREST OF AMICUS CURIAE 1 The Ground Zero Center for Nonviolent Action ( Ground Zero ) is a non-profit organization of more than 1,000 members located in Poulsbo, Washington. Since 1977, Ground Zero members have exercised their First Amendment rights by peacefully advocating for the abolishment of nuclear weapons to prevent nuclear war. In this regard, they conduct vigils and peaceful demonstrations near the entrance to the Naval Base Kitsap-Bangor ( Bangor Naval Base or Base ), which they have done at least three times a year since The mission of Bangor Naval Base is to serve as the host command for the Navy s fleet throughout the West Puget Sound and to provide base operating services, including support for both surface ships and submarines homeported at Bremerton and Bangor, Washington. See Military.com, Base Guide, Naval Base Kitsap- Bangor, 1 Pursuant to Supreme Court Rule 37.3(a), the parties have consented to the filing of this brief. Both parties filed with the Court blanket consents to the filing of amicus curiae briefs, in support of either party. Counsel for the Amicus Curiae authored this brief in its entirety, and no person or entity other than the Amicus Curiae and its counsel made any monetary contribution to the preparation or submission of this brief.

10 2 base-kitsap -bangor (last visited on Oct. 20, 2013). Approximately 20 percent of the nation s nuclear stockpile is believed to be deployed at Bangor Naval Base. In addition to conducting peaceful demonstrations near the Base, Ground Zero also owns a house, which serves as its headquarters, and 3.8 acres of land located directly adjacent to the Base, sharing 330 feet of fence with the Base. A ruling adopting the Government s broad interpretation of 18 U.S.C will have an adverse effect on Ground Zero members protected free speech activities at and around the perimeters of the Base peaceful activities which Ground Zero members have engaged in for the last 35 years. Not only would such an adverse ruling have a chilling effect on Ground Zero members First Amendment rights, but it would also subject Ground Zero members with prior barment letters to criminal prosecution for simply walking along hiking trails located in the woods that surround both the marked perimeters of the Base and Ground Zero s headquarters, or for merely taking a drive on any of the many public roads that lie adjacent to the Base. Affirming the Ninth Circuit s decision is essential to ensuring that Ground Zero members First

11 3 Amendment rights are protected and that their day-to-day peaceful activities remain unimpeded SUMMARY OF ARGUMENT This is a case about protected free speech that occurred in an area officially designated as a protest area located outside a closed military base. The question before this Court is whether individuals such as Respondent, Dennis Apel, and similarly Ground Zero members, can be subject to criminal prosecution under 18 U.S.C for engaging in peaceful protesting under the above described circumstances. Under the Government s interpretation, the phrase military installation in Section 1382 includes not just the restricted and enclosed area that constitutes Vandenberg Air Force Base, over which the military exercises exclusive ownership and control, but also the public road that lies outside the Base that crosses over federally-owned land, which falls within an easement the federal government granted to State and County authorities for public use. Essentially, the Government contends that Section 1382 permits the military to ban or arrest persons with barment letters issued under this statute from appearing on

12 4 public streets and roads that cross military-owned land. Such an interpretation, however, would infringe the free speech and due process rights of individuals with prior barment letters, including several Ground Zero members, and, therefore, should be rejected. For over 35 years, Ground Zero has engaged in peaceful demonstrations outside Bangor Naval Base. These demonstrations generally take place outside the Base, near the Base s main entrance, in a designated protest area located alongside NW Luoto Road, which is an open, public road. Within the designated protest area, which is located outside the blue line on NW Luoto Road that marks the boundaries of the closed military base, is a public bus stop. While military and local law enforcement often work closely together with Ground Zero in monitoring the demonstrations, over the years, some Ground Zero members have received barment letters for crossing the blue line as part of their peaceful demonstrations. Public records reveal that the Navy owns the land on which Ground Zero s longtime protest area is situated, yet there are no signs or other visual indications that the land is Navy owned. In fact, for years, state and county law enforcement officials, who police the area, have told Ground Zero

13 5 members that the land is owned by the State. The Navy has increasingly been acquiring property around the Base, including property that surrounds Ground Zero s headquarters which is in walking distance from the Base s main entrance. Much of this land acquired by the Navy, however, is unmarked and publicly accessible, and includes wooded land with hiking trails. Should the Court adopt the Government s broad interpretation of the statute, Ground Zero members with prior barment letters could be subject to arrest for not only engaging in peaceful demonstrations like they have been doing for years, but also for simply walking around their headquarters, or hiking the nearby trails, or driving along any of the public roads located near the Base. The Government has not adequately identified a significant governmental interest in restricting the ability of individuals, like Ground Zero members, with barment letters from demonstrating on open, public roads, which have long been recognized as quintessential public forums where free speech is generally protected. Thus, the Government s interpretation of the statute should be rejected because it would render the statute unconstitutional as applied to protesters, like Ground Zero members, with barment letters who protest on open, public roads located outside closed

14 6 military bases. The Government s interpretation should also be rejected because it would render the statute unconstitutionally vague, since individuals, like Ground Zero members, with barment letters would have no notice or fair warning regarding where they could peacefully demonstrate, or even walk or drive, outside a closed military base without being subject to criminal prosecution under Section For all of these reasons, the Court should affirm the judgment of the Court of Appeals overturning Mr. Apel s conviction under Section ARGUMENT Under the doctrine of constitutional avoidance, Section 1382 should be interpreted to avoid the serious constitutional questions that would arise under the Government s broad interpretation of the statute. Under the Government s interpretation, the scope of Section 1382, which by its terms is limited to a military installation, would extend not only to property that the military exercises exclusive possession, ownership and control over, but also to property the military exercises concurrent control and possession over, including

15 7 public roads maintained by state and county officials that cross over federally-owned land. Given Ground Zero s long-term presence at Bangor Naval Base, applying Section 1382 in this manner could, similar to Mr. Apel s situation, result in not only a violation of Ground Zero members First Amendment rights, but also give rise to a host of additional serious constitutional issues that could be avoided if the Court applies the plain language of the statute. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) ( [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. ). I. ADOPTING THE GOVERNMENT S INTERPRETATION OF SECTION 1382 WOULD MAKE THE STATUTE UNCONSTITUTIONAL AS APPLIED TO PROTESTERS LIKE GROUND ZERO. The Government s overly broad interpretation of the term military installation should be rejected. If the Court interprets the term military installation in Section 1382 as the Government urges, Ground Zero members with prior barment

16 8 letters like Mr. Apel could be criminally prosecuted for engaging in free speech activities on a public road, in an area specifically designated for protest activities, located outside the closed military installation at Bangor Naval Base, contrary to the First Amendment. A. LIKE MR. APEL, GROUND ZERO MEMBERS PROTEST ACTIVITIES OCCUR ON A PUBLIC ROAD IN A DESIGNATED PROTEST AREA OUTSIDE A CLOSED MILITARY INSTALLATION. Ground Zero members typically demonstrate near the main gate of Bangor Naval Base, which is located at the west end of Washington State Highway 308, also known as NW Luoto Road. Demonstrators stand on the north side of NW Luoto Road (the Designated Protest Area ), about twenty feet west of an overpass for Clear Creek Road NW, and several feet east of a blue line on NW Luoto Road that marks the entrance to the restricted area of Bangor Naval Base. Beyond the blue line, NW Luoto Road becomes NW Trident Boulevard (Trident refers to the nuclear-tipped missiles carried by the Ohio-class submarines based at Bangor). A large sign with six flashing lights is displayed at the blue line which states,

17 9 STOP AHEAD 475 FT. On the same side of the street and inside the Designated Protest Area is a Kitsap County Transit bus stop, which is open to and regularly used by the public. Approximately 100 feet east of the Designated Protest Area beyond the overpass is the off ramp for Washington State Highway 3, making that particular area unsafe and unsuitable for demonstrations. See Addendum A attached hereto (which is a close-up aerial picture slightly modified to better identify the blue line and the Designated Protest Area), and Addendums B and C attached hereto (which consist of a larger aerial photo and Google map of the area surrounding the main entrance to the Base). During Ground Zero demonstrations, some Ground Zero members stand on the overpass itself, the west side of which overlooks the entrance to the Base. The rest of Ground Zero demonstrators stand in the Designated Protest Area along NW Luoto Road, the boundaries of which are marked by barricades provided by the Navy. Ground Zero generally provides advance notice before any demonstrations occur. Law enforcement personnel for the Navy, Kitsap County and the Washington State Patrol ( WSP ) work together in planning for, and monitoring, Ground Zero

18 10 demonstrations. Ground Zero demonstrators and military and nonmilitary law enforcement have a good working relationship and exhibit a level of mutual respect for each other, since Ground Zero s demonstrations have always been peaceful. Military personnel police the area west of, or inside the blue line on Trident Boulevard, while county and state law enforcement police the area east of or outside the blue line on NW Luoto Road and the overpass. When arrests are made during Ground Zero demonstrations, the military makes arrests for activities that occur inside the blue line on Trident Boulevard, while arrests that occur outside the blue line on NW Luoto Road or the overpass are made by county or state law enforcement. The WSP often tell Ground Zero demonstrators that the barricades that the Navy sets up to mark the boundaries of the Designated Protest Area represent the perimeter of a free speech area where Ground Zero members should remain for their safety. Even though NW Luoto Road is labeled a county road, responses to public records requests made by Ground Zero members indicate that the Navy owns that section of NW Luoto Road west of the overpass, including the Designated Protest Area on NW Luoto Road. However, there are no signs or other visual indications that the land on

19 11 which the Designated Protest Area is situated is owned by the Navy. In fact, for years, State and County law enforcement officials, who police the area east of the blue line, have told Ground Zero members that the land is owned by the State. According to public records, the Navy also apparently owns the west side of the Clear Creek Road overpass, but it has granted a public easement for this portion of Clear Creek Road to Kitsap County. Thus, while it is not entirely clear, it appears that the Designated Protest Area on NW Luoto Road is situated on Navy property, even though the Navy in no way restricts access to this part of the road, or any other part of NW Luoto Road. Nor does the Navy engage in enforcement activities within the Designated Protest Area, or any of the area east of the blue line that marks the boundary of the Base confines. Public access to the wooded area which lies north of NW Luoto Road, behind the Designated Protest Area on NW Luoto Road, is not restricted in any way. A trail in the woods links Clear Creek Road and NW Luoto Road in this area for pedestrians and bike riders. Within walking distance from the Base s main gate, Ground Zero owns 3.8 acres of land, with a house directly adjacent to the Base.

20 12 Over the past several years, the Navy has consolidated Bangor Naval Base with other nearby military operations in order to seek a more central area of command. In doing so, the area surrounding Ground Zero s headquarters has become increasingly surrounded by Navy-owned property. Public records indicate that the Navy owns a large portion of nearby property, much of which is unmarked, unrestricted wooded land with hiking trails. B. THE PUBLIC ROAD WHERE GROUND ZERO S SPEECH OCCURS IS A QUINTESSENTIAL PUBLIC FORUM. The First Amendment provides that Congress shall make no law... abridging the freedom of speech. U.S. Const. amend I. There can be no dispute that Ground Zero s protest activities constitute First Amendment activity. United States v. Grace, 461 U.S. 171, 176 (1983) ( There is no doubt that as a general matter peaceful picketing... [is an] expressive activit[y] involving speech protected by the First Amendment. ). Like the public road where Mr. Apel was peacefully protesting, the Designated Protest Area where Ground Zero s demonstrations occur is located on a public road outside the clearly marked

21 13 boundaries of Bangor Naval Base. Public streets have long been recognized as quintessential public forums where individuals are permitted to express their views in an orderly fashion. See Perry Educ. Ass n v. Perry Local Educators Ass n, 460 U.S. 37, 45 (1983) (recognizing that streets and parks are quintessential public forums that have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions ) (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939)). As the Court noted in Grace, in places such as public streets, the Government s ability to permissibly restrict expressive activity is limited. Here, the government may enforce reasonable time, place, and manner regulations [only] as long as the restrictions are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communications. 461 U.S. at 177 (quoting Perry Educ. Ass n, 460 U.S. at 45). The Court also recognized in Grace that just because a road is publicly owned and operated does not automatically make the road a public forum. Rather, the Court must look at the objective characteristics of the road at issue to determine whether it functions like

22 14 a traditional public street. Id. at ; see also Ark. Educ. Television Comm n v. Forbes, 523 U.S. 666, 677 (1998). In examining the objective characteristics of the public sidewalks at issue in Grace, the Court made a point to distinguish the ruling in Greer v. Spock, 424 U.S. 828 (1976), that the streets and sidewalks at issue there did not qualify as traditional public forums. In Grace, the Court made clear that its holding in Greer hinged on the fact that the streets and sidewalks at issue in Greer were located within the military installation at issue in that case, and thus were noticeably separate from the public streets and sidewalks of the surrounding city. Grace, 461 U.S. at 179. In contrast, the sidewalks at issue in Grace, the Court noted, had no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the [Supreme] Court grounds that they have entered some special type of enclave. Id. at 180. Because the sidewalks serving as the perimeter of the U.S. Supreme Court building were not any different from other public sidewalks in Washington, D.C., the Court held in Grace that there was no reason to treat them any differently for First Amendment purposes and ultimately concluded that the sidewalks surrounding the

23 15 Supreme Court qualified as traditional public forums. Id. at The same can be said about the Designated Protest Area for Ground Zero and NW Luoto Road. Unlike the streets in Greer, and similar to the road on which Mr. Apel was peacefully protesting, Ground Zero s Designated Protest Area and NW Luoto Road are both situated outside the clearly marked boundaries of Bangor Naval Base. Indeed, similar to Vandenberg Air Force Base, there is a blue line painted on the road to make it clear to all where the public road (NW Luoto Road) ends and the closed military base (Bangor Naval Base) begins. Neither the NW Luoto Road nor the Clear Creek Road overpass that crosses over NW Luoto Road are closed in any way, and traffic on both roads is unimpeded. There are no gates, sentries, or checkpoints to suggest that NW Luoto Road or Clear Creek Road are anything other than ordinary public roads. Presumably, they both cross over federally-owned land, but that land is not enclosed or controlled in any way, unlike the federallyowned land that lies on the military-controlled side of the blue line. As explained in Respondent s Brief, it does not matter that roads like Highway 1, or NW Luoto Road or Clear Creek Road, abut or lie adjacent to a

24 16 closed military installation. (Resp. Br. 24). As the Court expressly declared in Grace: Traditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. 461 U.S. at 180. For the same reason Greer is distinguishable from Mr. Apel s and Ground Zero s cases, the Court s holding in United States v. Albertini, 472 U.S. 675 (1985), is also distinguishable because the speech at issue in Albertini occurred during an open house that was held within the confines of a military base, not on a public road located outside a military base. The objective factors present in both Mr. Apel s and Ground Zero s cases are more akin to the circumstances present in Flower v. United States, 407 U.S. 197 (1972) (per curiam), where the Court reversed a conviction under Section 1382 of an individual who had a prior barment letter and was peacefully distributing leaflets on a public street that, although it was located within the military base in question, was not restricted in any way by the military, but instead was treated as a public thoroughfare no different than [any] other streets in the city. Albertini, 472 U.S. at 685 (describing the facts in Flower).

25 17 In light of the foregoing, the road where Ground Zero s free speech activities occur, which is similar if not identical to where Mr. Apel s speech occurred, qualifies as a traditional public forum. Accordingly, any restrictions placed on expressive activities that occur there must satisfy a strict scrutiny test applicable to traditional public forums. C. AT THE VERY LEAST, GROUND ZERO DEMONSTRATIONS OCCUR IN A DESIGNATED PUBLIC FORUM. As the Court recently explained in Christian Legal Society v. Martinez, 130 S. Ct (2010), governmental entities can create what is known as designated public forums when government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose. Id. at 2984 n.11 (citation omitted). [S]peech restrictions in [a designated public forum] are subject to the same strict scrutiny as restrictions in a traditional public forum. Id. (citation omitted). Unlike traditional public forums, however, designated public forums are created only by purposeful governmental action. Ark. Educ. Television Comm n, 523 U.S. at 677. Thus, government intent is a critical factor in determining whether a designated public forum has

26 18 been created. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985). Such intent must be discerned from the government s policy and practice. Id. With respect to Ground Zero, the Navy s intent to establish a designated public forum could not be more clear. The Navy routinely places barricades outside the main gate of Bangor Naval Base alongside NW Luoto Road to identify where Ground Zero members are permitted to engage in peaceful protests. Moreover, about half of Ground Zero members who regularly attend demonstrations (approximately 50 individuals) have prior barment letters issued to them under Section 1382, yet these individuals are routinely permitted to engage in peaceful protests that take place in the Designated Protest Area along NW Luoto Road. It is only when a Ground Zero member with a barment letter walks past the blue line and steps onto the military side of the blue line that military personnel will arrest Ground Zero members under the reentry provision in Section Only a few Ground Zero members with barment letters have done this; most Ground Zero members with barment letters understand that crossing the blue line may subject them to criminal charges under the reentry

27 19 provision of Section 1382 and choose not to engage in such activity. 2 In light of its established policy and procedure, the Navy should not now be heard to argue that it has not purposefully created a designated public forum for both Ground Zero members, and the public at large, to engage in expressive activity. And, having purposefully created the designated public forum, the Navy cannot impose restrictions on that activity, under the auspices of Section 1382, without first establishing that such restrictions meet the strict scrutiny test identified above and discussed below. 2 To be clear, Ground Zero members do not challenge the Navy s authority under Section 1382 to seek criminal prosecution of Ground Zero members with prior barment letters who cross the blue line to enter the Base confines. Rather, Ground Zero s primary concern here is that, should the Court adopt the Government s broad interpretation of Section 1382, Ground Zero members with prior barment letters will no longer be permitted to engage in the peaceful protests that they have been permitted to engage in over the years outside the Base.

28 20 D. NO SIGNIFICANT GOVERNMENT INTEREST EXISTS TO JUSTIFY RESTRICTING GROUND ZERO MEMBERS SPEECH WITHIN THE DESIGNATED PROTEST AREA. The Government s interpretation of Section 1382 would define an unrestricted, publicly accessible road as a military installation, as long as the underlying property is owned by the military, permitting it to restrict access to and speech on the otherwise public road. The Government claims this interpretation is necessary to prevent substantial harm to the safe and orderly operation of many of this nation s military installations. (Pet. 14.) Tellingly, the Government provides no support for this claim. None exists. Instead, the Government grasps at generalities that have no relevance to the facts of this case. But courts, including this Court, have regularly held that such ill-defined and abstract concerns are insufficient to justify speech restrictions, and for good reason theoretical risks abound in all public areas throughout the country. Such a loose standard would permit speech restrictions anywhere, for any reason, and would swallow the First Amendment whole.

29 21 As previously noted, in traditional public forums, as well as designated public forums, the Government can enforce laws that restrict the time, place, and manner of speech. Carey v. Brown, 447 U.S. 455, 476 (1980). However, these restrictions must be narrowly tailored to a significant government interest, and leave open ample alternative channels of communication. Id. While courts must give deference to the professional judgment of military authorities concerning the relative importance of a particular military interest, Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 9 (2008), here, the Government has not adequately identified a particular military interest. In Mr. Apel s case, the Government claims its interpretation of Section 1382 is needed to bar certain people from demonstrating within a small area dedicated to free speech, located at least 200 yards away from any restricted or closed military area. (Br. in Opp. 1, 3-4.) The Government claims this interpretation is justified because to do otherwise would limit its authority to remove and sanction civilians who refuse to comply with base rules and regulations. (Pet. 15). This is nonsensical, because the Government s interpretation would not prevent it from arresting a person who broke a rule or regulation.

30 22 Indeed, affirming the Court of Appeals would not limit the Government s authority to arrest or prosecute a person who threatens to, for example, shoot someone, see Pet. at 15 (discussing factual circumstances behind United States v. Parker, 651 F.3d 1180 (9th Cir. 2011)); climb atop a nuclear submarine, see United States v. Allen, 924 F.2d 29, 30 (2d Cir. 1991); or trespass near a live impact zone, see United States v. Ventura-Melendez, 275 F.3d 9, 12 (1st Cir. 2001). It would not limit the Government from arresting a person who walks into restricted areas of a base, or even from limiting access to temporarily public places within restricted areas, as in Albertini. Indeed, it would not even have impacted the Government s ability to arrest Mr. Apel for trespassing and throwing blood on a sign, the behavior for which he initially received a barment letter. (Pet. 14.) All of these bad behaviors remain unlawful and punishable. The Government has provided no evidence that highlevel security risks such as a would-be terrorist are even likely to be subject to barment letters in the first place. The Government s interpretation would do no more than allow it to arrest a person for standing in an unrestricted public area, assuming the area is owned by the military and the person happened to get kicked off a military base at some point in the

31 23 past, regardless of how long ago. While the Government may want this ability in order to limit or stop potentially disruptive protestors, it hardly qualifies as necessary to prevent substantial harm to the safe and orderly operation of many of this nation s military operations. (Pet. 14.) Stripped of hyperbole, this case involves a man (Mr. Apel) who stood on the side of a public road. Similar to Ground Zero s circumstances, the Government does not restrict access to any portion of the road where Mr. Apel engaged in peaceful protesting, except the designated area on which he stood. (Br. in Opp. 1, 3-4.) Similar to Ground Zero s circumstances, anyone can drive, or ride as a passenger in a car, on the public roads at issue. Anyone can enter a nearby Visitors Center to learn more about the Base, or buy an American flag, or talk to the tour guides. Anyone can get on or off the bus at the nearby bus stop. While military commanders are properly concerned about serious security threats, keeping protestors off public roads does little, if anything, to mitigate those threats. The risk of theoretical dangers exists in all public places, and would exist outside Vandenberg Air Force Base, or Bangor Naval Base, even if the Court were to adopt the Government s position. Such abstract fears, however, are insufficient to justify a speech restriction. See, e.g., Bay Area

32 24 Peace Navy v. United States, 914 F.2d 1224, 1227 (9th Cir. 1990) (rejecting Navy arguments based on the existence of terrorism in the world generally and the opinions of various military personnel that a 75- or 100-yard zone was needed to protect against acts of terrorism ). In Ground Zero s case, all of its protest activities over the years have been peaceful, and no Ground Zero member has ever received a barment letter for violent or destructive conduct. Thus, in Ground Zero s case, an expansion of the scope of Section 1382 on grounds of base safety would be completely unfounded. E. THE GOVERNMENT S INTERPRETATION OF SECTION 1382 IS NOT NARROWLY TAILORED TO ITS PURPORTED INTEREST IN SAFETY. Even if the Government identified a significant governmental interest, which it has not, the Government s broad interpretation of Section 1382 is not narrowly tailored to achieve its purported interest in safety. The Government essentially contends that the Ninth Circuit s decision forces it to take all comers or restrict access to Highway 1 entirely. But this argument overlooks the fact that the Government already accepts all comers (in both

33 25 Mr. Apel s and Ground Zero s case), along with all attendant risks, and thus its interpretation in this regard would do no more than allow it to selectively bar entry to a designated free speech zone. Adopting the Government s interpretation of Section 1382 would thus burden substantially more speech than is necessary to further the government s legitimate interests, making the law substantially broader than necessary to achieve the government s interest in ensuring base safety. Ward v. Rock Against Racism, 491 U.S. 781, 799, 800 (1989). For example, the Government s interpretation of Section 1382 would permit it to restrict concerned citizens from engaging in peaceful demonstrations on public streets, if those streets happened to be owned by the military, based on a non-violent transgression that may have occurred decades earlier. Ground Zero member Glen Milner illustrates this point. Mr. Milner received a barment letter for trespassing in 1987, after he crossed the blue line at Bangor Naval Base and knelt in prayer. Unlike the transgressors in Parker, Allen, and Ventura- Melendez, Mr. Milner did not in the past, nor has he presently, engaged in any destructive or threatening behavior, nor has he sought to push

34 26 the limits of his barment letter. In fact, Mr. Milner has repeatedly inquired as to the status of his barment letter to ensure compliance therewith. However, for a variety of convergent reasons described in more detail below, the Government s interpretation would permit the Navy to arrest Mr. Milner who presents no threat whatsoever for doing no more than standing outside Ground Zero s headquarters. Meanwhile, the Government s interpretation would do nothing to prohibit a disruptive individual from driving off NW Luoto Road and onto the restricted areas of Bangor Naval Base. By contrast, even accepting the Government s implausible claim that selectively barring people from a designated protest zone helps stop people from leaving the protest zone to climb atop nuclear submarines, for example, it would not stop anybody from leaving a nearby Visitors Center and doing the same thing, or from simply driving off-road and running onto the Base to interrupt training in a live impact zone. If indivudals really wanted to cause havoc, they have plenty of ways to do so and the Government has similarly ample authority to stop them from doing so. See, e.g., 50 U.S.C. 797 (violation of defense property security regulation); 18 U.S.C. 795, 797 (offenses related to photographing defense installations); 18 U.S.C.

35 (enticing desertion from the Armed Forces); 18 U.S.C (damaging government property); 18 U.S.C (hate crimes against service members, their immediate families and their property); 18 U.S.C (damaging government communication lines); 18 U.S.C. 2387, 2388 (advising mutiny and other subversive activities); 18 U.S.C. 81 (arson of military or naval property). The Government s interpretation of Section 1382 is unnecessary, and not particularly helpful in ensuring base security; it therefore fails to promote[] a substantial government interest that would be achieved less effectively absent the regulation as required to be narrowly tailored, because it does not promote the Government s purported safety interest at all. Albertini, 472 U.S. at 689. F. THE GOVERNMENT S GREATER- INCLUDES-THE-LESSER ARGUMENT CANNOT JUSTIFY A SPEECH RESTRICTION. The Government argues that because it is not required to permit unrestricted access to militaryowned property, it could respond to the Ninth Circuit s interpretation of Section 1382 by simply cutting off access to its property entirely. Leaving aside legal and logistical issues of whether this is

36 28 even lawful in light of the easement, the highway, and the bus stop at issue in Mr. Apel s case, the Government s argument is misplaced. The Court has repeatedly held that the Government cannot enforce exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place, unless the exclusion is narrowly tailored to a significant government interest. Widmar v. Vincent, 454 U.S. 263 (1981) (holding that a state cannot selectively limit attendance at university meeting facilities); City of Madison, Joint Sch. Dist. No. 8 v. Wis. Employment Relations Comm n, 429 U.S. 167 (1976) (school board meeting); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (municipal theater). Put simply, once the Government opens an area to the public for expressive activity, it must overcome the strict scrutiny test applicable to a traditional public forum, which it has not done here. G. THE GOVERNMENT S INTERPRETATION OF SECTION 1382 WOULD ENTIRELY RESTRICT THE ABILITY TO DEMONSTRATE OF CERTAIN GROUND ZERO MEMBERS. Similar to the situation at Vandenburg Air Force Base, the military owns much of the land surrounding Ground Zero s normal demonstration

37 29 area potentially including the demonstration area itself. The Navy also purchased land adjacent to Ground Zero s headquarters, and has begun a consolidation effort, incorporating distant, nonadjacent areas into Bangor (such as the Keyport Naval Center, which is 3.5 miles away from Bangor Naval Base). Most of this area acquired by the Navy is publicly accessible, and almost none of it is marked as Navy-owned property. If the Government is permitted to use Section 1382, as urged, to prohibit demonstrating in areas that are otherwise accessible to the public, many Ground Zero members would be unable to participate in Ground Zero demonstrations. The Navy could arrest any member of Ground Zero with a prior barment letter (such as Mr. Milner) who enters the Ground Zero demonstration area, notwithstanding the fact that Mr. Milner and other Ground Zero members have long been permitted to do so. In addition, many Ground Zero members would be unable to safely walk to and from, and around, the Ground Zero headquarters, or visit other, unmarked Navy-owned public areas on the Kitsap Peninsula. 3 Therefore, applying the 3 Moreover, it is unclear how the Navy could possibly enforce Section 1382 in an even-handed manner, should the Government prevail. Both NW Luoto Road in Washington and

38 30 Government s interpretation would completely foreclose any demonstrations by Ground Zero members with barment letters, which would be unlawful. Ground Zero s concern is not fanciful. On the basis of his 1987 barment letter, for example, the Navy has informed Mr. Milner that he would be arrested for attending a public hearing held at the Keyport Naval Center 3.5 miles away from Bangor Naval Base because the Center is similarly owned by the Navy. As the Navy continues to consolidate resources and purchase Highway 1 in California are public roads. Each road is home to a public bus stop. The Government has given no indication that it seeks to prohibit Mr. Apel, or others with barment letters, from driving on Highway 1, suggesting that the Government here seeks to selectively apply Section 1382 to people wishing to demonstrate in a protest zone. But if the Government did seek to apply Section 1382 in an evenhanded manner so as to prohibit all persons with barment letters from accessing any portion of any military-owned land, such as driving on Highway 1 or taking the bus from NW Luoto Road, it would necessarily have to do one of the following things: restrict access to these areas (either entirely or intermittently) in order to screen for persons with barment letters, or increase surveillance of those with barment letters and the public area generally. Either scenario creates a host of unique problems too numerous to address here, apart from what has already been addressed.

39 31 surrounding land, affirmance of the Ninth Circuit s interpretation of Section 1382 is vital to ensure the ability of many Ground Zero members to participate in demonstrations, as well as to move about freely in otherwise unrestricted public areas surrounding the Base. Importantly, Ground Zero does not argue that Section 1382 should be abrogated so as to limit military authority to punish actual wrongdoers or those who present an actual threat. What Ground Zero seeks, and what is ultimately the heart of this case, is an interpretation of Section 1382 that preserves the right of all citizens to peacefully demonstrate in areas which are open to the public for expressive activity. II. THE GOVERNMENT S INTERPRETATION MAKES THE STATUTE UNCONSTITUTIONALLY VAGUE. The Government s interpretation of Section 1382 would also render it unconstitutionally vague. The Navy owns much of the land surrounding Bangor Naval Base and Ground Zero headquarters; yet, much of this land is unmarked and unrestricted. As a consequence, Ground Zero members and citizens generally may not know when they cross from public land to

40 32 military land. Thus, Ground Zero members with barment letters would lack notice as to whether their presence on a particular tract of land could invite criminal liability. A. THE DUE PROCESS CLAUSE REQUIRES LAWS TO PROVIDE FAIR WARNING. To comport with the Due Process Clause of the Fifth Amendment, a law must provide fair warning of the actions it either prohibits or requires. Marks v. United States, 430 U.S. 188, 196 (1977). In order to provide fair warning, a law must not be vague, and, either standing alone or as construed, [must make] it reasonably clear at the relevant time that the [conduct proscribed is] criminal. United States v. Lanier, 520 U.S. 259, 267 (1997). This is particularly true when the law in question implicates First Amendment values. Marks, 430 U.S. at 196. The void for vagueness doctrine bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Lanier, 520 U.S. at 266 (citation omitted). An act is void for vagueness if it (1) fails to provide sufficient notice to regulated parties regarding what is

41 33 required or prohibited or (2) fails to provide precision and guidance necessary to avoid arbitrary and discriminatory enforcement. FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). Put simply, a law must make it clear what a person can and cannot do. While [a] scienter requirement may mitigate a law s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed, Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982), a vague law with no mens rea requirement risks becoming a trap for those who act in good faith. Colautti v. Franklin, 439 U.S. 379, 395 (1979). Where, as here, a law implicates expressive activity, the Court has been particularly aggressive in its enforcement of the prohibition against vagueness. Indeed, when the First Amendment is at issue, rigorous adherence to the fair warning and vagueness requirements is necessary to ensure that ambiguity does not chill protected speech. Id. Thus, unlike in other contexts, the Court will entertain facial challenges to vague laws that impact expressive activity. Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971) (sustaining facial constitutional challenge to statute prohibiting annoying conduct).

42 34 B. GROUND ZERO MEMBERS WITH BARMENT LETTERS WOULD LACK FAIR WARNING OF POSSIBLE VIOLATION OF SECTION 1382 IF THE COURT ADOPTS THE GOVERNMENT S INTERPRETATION. If the term military installation in Section 1382 is interpreted to include unmarked, unrestricted, publicly accessible land, as the Government claims it should be, such an interpretation would devastate Ground Zero s ability to demonstrate (or even organize) effectively, which is something it has been doing for over 35 years. The Government s interpretation would impact Ground Zero s ability to freely traverse the seemingly public lands surrounding its headquarters, and would provide no fair warning or any warning at all as to where its members with past barment letters can, and cannot, be. Put another way, the Government s interpretation of Section 1382, which necessarily includes in military installation unmarked, unrestricted, publicly accessible land that happens to be owned by the military, would render the statute unconstitutionally vague when applied to the factual circumstances pertinent to Ground

43 35 Zero. First, because a public records review suggests that the Navy may own the land on which the publicly accessible Designated Protest Area on NW Luoto Road is located, the Government s interpretation could permit the Navy to arrest Ground Zero members with past barment letters (like Mr. Milner) when they participate in demonstrations, even though the area is publicly accessible and contains no indication that it is military property. Indeed, the context the blue line, the barricades, local law enforcement arguably suggests that the area is locally owned by the county or state. These circumstances fail to provide even a modicum of fair warning. Second, because the Navy continues to purchase property surrounding Bangor Naval Base and Ground Zero headquarters, as well as property elsewhere in Kitsap County, Ground Zero members with barment letters could not safely demonstrate or even set foot anywhere in the area without fear of arrest. Indeed, the Navy has already indicated its belief that Section 1382 applies to noncontiguous property. Moreover, Section 1382 contains no mens rea requirement sufficient to preclude vagueness Ground Zero members with barment letters thus risk arrest regardless of whether they intentionally, knowingly, or even accidentally traverse nearby

44 36 land. Against this backdrop, there would simply be no way for a Ground Zero member to reasonably know, at the relevant time, that entry into a particular tract of land was criminal. Lanier, 520 U.S. at 267. The Government s interpretation of Section 1382 thus renders the statute unconstitutionally vague and does not provide the requisite fair warning that criminal statutes are required to provide CONCLUSION The judgment of the Court of Appeals should be affirmed.

45 37 RESPECTFULLY SUBMITTED, this 28th day of October, PERKINS COIE LLP Christine M. Salmi Counsel of Record PERKINS COIE LLP 1111 West Jefferson St., Suite 500 Boise, ID John R. Tyler PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA Counsel for Amicus Curiae Ground Zero Center for Nonviolent Action

46 ADDENDUM A

47

48 ADDENDUM B

49

50 ADDENDUM C

51