New BART protests could test emerging policy on cell service shutdowns
After criticism from civil libertarians and First Amendment scholars, BART says it will consider a policy of shutting down cellular service only in an 'extreme case.' But what is an extreme case?
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“Whereas a terrorist attack in action is a legitimate reason to cut off communications because lives are clearly at stake, a potential crime – no matter how logical that may seem – is not a good enough reason and is clearly a violation.”Skip to next paragraph
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Mr. Levinson says legal minds agree that when there is a "clear and present danger" to life, limb, or property, that the government not only has a right but a responsibility to do all in its power to stop it, including limiting communications. The line is included in the US Supreme Court's 1919 so called "Clear and Present Danger" decision, which is generally accepted as a limitation on the First Amendment.
But Levinson and others feel that the limitation is dangerous, because it can be misused to stop speech and press that doesn't really present an immediate danger, or to stop the communication of citizens who are not posing a danger to anyone.
He says BART’s newly-proposed policy may be a step in the right direction, “but it must be rigorously watched to make sure well-meaning BART officials don't use it to stop what aren’t ‘clear and present major crimes’ - criminal activities in process - but the potential for crimes.
Cutting off anyone's cell phone for a crime not in progress, or imminently about to happen, would be going too far, and would clearly violate the First Amendment,” he says.
A citizen's free-exercise right must be weighed against the public interest and a state can regulate to ensure that it is practiced in a reasonable time, place, and manner.
“You have the right to demonstrate and speak your mind, but not in the middle of the San Diego freeway at noon,” says Mr. Choper. “If you want to be near it in a park or on a sidewalk, that is one thing. But you don’t have the right to speak anytime, anywhere … there have been a ton of cases on this.”
Robert Pugsley, a professor of law at Southwestern Law School, thinks BART has a strong legal argument in favor of shutting off cell service based on past experience, and that the key will be how peaceful the demonstrators are and how many of them show up.
“BART has already witnessed mobs get out of control," so they certainly have a First Amendment argument in their favor, says Pugsley. “It’s a judgment call on whether or not commuters have safe access to and from the trains.”
IN PICTURES: Flash mobs