On August 11, San Francisco Bay Area Rapid Transit (BART)–a special government agency–disabled signal repeaters that in turn blacked out all wireless communications in four rail stations. The black out came in response to BART fears that those protesting the recent shooting death of a homeless man by a BART officer would disrupt railway traffic.
“[O]n the platform, the constitutional right to safety is paramount,” BART spokesman Linton Johnson said recently. “The right to be able to express your opinion ends, basically, at the fare gate….”
Despite Johnson’s assertion that constitutional rights to free speech end at the fare gate, some citizen interest groups are calling the black out, which disabled all wireless cell phone communications for three hours, unconstitutional censorship.
“It’s the first known incident that we’ve heard of where the government has shut down a cell phone network in order to prevent people from engaging in a political protest,” Catherine Crump, staff attorney with the American Civil Liberties Union’s Speech, Privacy & Technology Project, said in an interview.
Critics have gone as far as comparing BART’s wireless blocking to that of former Egyptian President Hosni Mubarak and Iranian President Mahmoud Ahmadinejad. Specifically, critics cite a BART statement that reads:
No person shall conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas of BART stations, including BART cars and trains and BART station platforms.
First, shutting down cell phone service necessarily affects commuters–whether related to the protests or not–beyond the boundaries of the “paid areas” of the BART station. Simply, when BART shutdown the cell phone service, it not only prevented citizens from speaking freely and organizing within the station’s “paid areas,” but also from associating with others outside of the “paid areas.”
“[Thus,] [b]y cutting the phone signal, BART simultaneously jeopardized all three points of the free speech trifecta: speech, freedom of the press and the right to assemble,” Ted Trautman at the Guardian wrote.
Second, even if one applies the lower standard of judicial scrutiny used for speech restrictions placed on non-public forums, such a blanket shutdown of cell phone service may be overbroad to the point that it is no longer reasonable. (Traditionally, the control of private state property–like, perhaps, the BART “paid areas”–is subject to lesser scrutiny, because the state “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”)
If BART’s platforms are considered non-public forums, then BART would have only violated its passenger’s First Amendment rights if its actions leading to the shutdown all cell phone communications were unreasonable and its reason for doing so was “an effort to suppress expression merely because public officials oppose the speaker’s view.”
Thus, whether its actions were unconstitutional would come down to whether a court believed that BART’s suppression of speech, assembly, and association was unreasonable, and that such actions were undertaken because BART officials opposed the protesters’ viewpoints.
Third, even if one accepts that BART has the ability to control its own hardware (here, the signal repeaters providing cell access), other areas of free speech jurisprudence have suggested that prior restraints on speech may, in fact, be worse than limits on conduct. Indeed, in a 1996 Supreme Court commercial speech case, Justice Stevens wrote, “We think it quite clear that banning speech may sometimes prove far more intrusive than banning conduct….”
Thus, as opposed to setting up a free-speech zone, or otherwise controlling protesters, BART may have chosen the worst of two-evils–in this case, potentially infringing on transit passengers’ First Amendment rights by preventing speech altogether.
Moreover, BART would have to distinguish an early railway transit case decided by the California Supreme Court in 1967, In re Hoffman, which concluded, “Noise and commotion are characteristic of the normal operation of a railway station. The railroads seek, neither privacy within nor exclusive possession of their station. They therefore cannot invoke the law of trespass against petitioners to protect those interests.”
These are just a few of the myriad of constitutional issues–including the suppression of speech in order to prevent eminent violence–that BART’s actions raise. Currently, the Federal Communications Commission (FCC) is investigating the incident. FCC spokesman Neil Grace recently wrote:
Any time communications services are interrupted, we seek to assess the situation. We are continuing to collect information about BART’s actions and will be taking steps to hear from stakeholders about the important issues those actions raised, including protecting public safety and ensuring the availability of communications networks.
Whatever the outcome of this specific situation, one thing is clear: new technologies not only empower citizens to speak freely, widely, and quickly, but also leave citizens vulnerable to losing those abilities. If courts fail to protect speech simply because it is transmitted by a new technology, than democracy will be worse for it.