Cell Service Shutdown Raises Free Speech

Despite a federal investigation, a threatened lawsuit by civil libertarians, and criticism from employees and board members, BART management is standing by its controversial tactics for keeping protesters from disrupting service.


On Monday, the Federal Communications Commission said it would investigate BART’s disabling of cellphone and wireless Internet service Thursday in four downtown stations to prevent activists from communicating with one another.


Since the July 3 fatal shooting of Charles Hill by agency police officers, activists have staged occasional protests at BART stations, including a July 11 event that caused major delays.


Despite howls that the communication shutdown violated free speech rights, BART spokesman Linton Johnson defended the action Monday, saying some passengers’ right to safety outweighed others’ right to protest. He called the decision “gut-wrenching,” but said it was the only way to ensure passenger safety.


On Monday, American Civil Liberties Union lawyer Linda Lye said her group would consider legal action if BART continued disabling telecommunications. She said government agencies can bar protests that present a clear and present danger, but depriving BART patrons of telecommunications service was an unconstitutional prior restraint on free speech rights.


One group that promotes electronic freedom compared the people who run BART to an authoritarian regime in Egypt, tweeting "BART pulls a Mubarak in San Francisco."


"It's very clearly a major First Amendment problem whenever a government agency takes it upon itself to simply prevent people from being able to speak," says Lee Tien, a senior staff attorney at the Electronic Frontier Foundation, a civil rights group.


The easiest way to describe what the transit authority did, Tien says, is to call it a broad prior restraint on the communications of thousands of cell phone users — not just demonstrators, but also kids talking to their parents and adults talking to their doctors.


"You know, in the past it's been aimed at, say, newspapers or aimed at broadcasters or at book publishers, and in this case we've got a situation where it's aimed at the cell network," he adds. Courts generally frown on prior restraint in other contexts.


Safety, Private Property Concerns


For its part, the transit authority says it acted carefully, blocking phone calls in just a few subway stations for a few hours to protect public safety and prevent chaos on platforms where trains race by at high speeds.


BART's chief spokesman, Linton Johnson, talked with reporters about the decision Monday afternoon.


"There is a constitutional right to safety," Johnson says. "A lot of people are forgetting the fact that there are multiple constitutional rights and are focusing solely on one. BART is obligated to protect them all."


Johnson says transit officials allow demonstrations in a special free speech area, far away from the platforms and outside the fare gates, restrictions that he says are in line with Supreme Court precedent that allows the government to put limits on the time, place and manner of protests.


Eugene Volokh teaches law at the University of California, Los Angeles.


"The important thing here is that BART was limiting cell phone service on its own property, and property that the Supreme Court has before labeled as what is called a non-public forum," Volokh says. "It's not a park, it's not a sidewalk, [it's] not a place that's traditionally been devoted to public expression.


Gene Policinski is executive director of the First Amendment Center. He's been following the action in San Francisco.


"I think it raises, at a very bottom line, real serious questions about government interfering with the ability of you and I to talk to each other," Policinski says. "How far does that go? How far will the courts permit it?"


Back in his heyday in the 1960s, he says, the equivalent to a cell phone disruption might have been police swiping a protester's bull horn.


"If government was seizing printing presses to keep people from understanding or learning something, I think traditionally in this country that would just be beyond the pale," Policinski adds. "The question is does a momentary disruption of cell phone service constitute that kind of level of government interference with speech?"


So a body of law that's clear when it comes to old technologies is still a little vague when it comes to new ones.


"We're still arguing over how do we regulate content on television 70 years after it became a mass medium so there's no guarantee we're going to settle this anytime quickly, I think," Policinski says.


And as if to illustrate that point, the Federal Communications Commission, which regulates telecommunications networks, says it is assessing the actions by BART.


FCC spokesman Neil Grace told NPR in an email that "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.