Published on:

Protesters Have No Reason To Picket The Ninth Circuit (Though If They Did, They’d Be Welcome To Do It)

The Ninth Circuit is a hotbed of defendant-friendly First Amendment jurisprudence in criminal cases.

The Ninth Circuit recently held that racially-motivated threats on an internet message board don’t violate the law. And, recently, in United States v. Parker, the Ninth Circuit vacated the conviction of a protester at a military base.

2044208193_e00de96b7ePerhaps the defense lawyers in the Twitter harassment case should try to transfer venue.

But, to United States v. Parker.

Mr. Parker prefers to spend time protesting at the Vandenberg Air Force Base in California. When he’s protesting there, it appears that he sets up shop on Ocean Avenue, a public road that crosses the base.

Not once, not twice, but thrice he was asked to move along. He was directed to the “designated protest area” outside the base’s gate.* He was barred from protesting on Ocean Avenue by the military police. Yet he returned.

Finally, he was charged with violating 18 U.S.C. 1382, which says:

Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or

Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed there from or ordered not to reenter by any officer or person in command or charge thereof–

Shall be fined under this title or imprisoned not more than six months, or both.

He appealed, saying that he was on a public road. The argument is that you can’t be prosecuted for entering a military base if it’s also a public road, because the military doesn’t have the exclusive right to kick people out of public roads.

In a way, it’s the governmental inverse of the rule that one roommate can’t consent to let the police search another roommate’s stuff.

And the Ninth Circuit, in a panel which included D.C. Circuit Judge Brett Kavanaugh, reversed.

* One imagines that it was “outside the gate” in the sense that it was in Maine.