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?

Jeff Chiu/AP
Bay Area Rapid Transit (BART) police officers block off a portion of the train platform before closing Civic Center train station in San Francisco last week.

A third consecutive Monday of protests against the Bay Area Rapid Transit system will test BART's emerging policy on how to balance public safety with free speech.

Activists have rallied against BART to protest the fatal shooting of a homeless man with a knife on July 3 by security. But the protests took a digital-age twist when BART shut off its cellular network on on Aug. 11 to prevent protesters from using their smartphones to organize.

Now, after harsh criticism from civil libertarians and First Amendment scholars, BART has suggested that it will consider a policy of shutting down its cellular service only in an "extreme case."

What, exactly, constitutes an extreme case, however, remains unclear – even among legal scholars. Many are looking to the ongoing protests tonight and into the future in hopes of seeing how BART might respond.

At a time when groups of young people from London riots to American "flash robs" are using mobile technology in disruptive – and sometimes illegal – ways, the legal issues involved in the BART situation could resonate far beyond the Bay Area.

BART officials are warning commuters they may shut down stations in San Francisco Monday, with a demonstration set for 5 p.m. Pacific time at Civic Center Station.
But the anticipated showdown of cellular service might not develop Monday. Organizers affiliated with the hacker group Anonymous, who are calling for the protest, are asking demonstrators to take a less disruptive approach by staying off train platforms and out of busy Market Street.

Still, the controversy over BART's decision to cut cell service on Aug. 11 continues to unfold. In response to pressure, BART held a three-hour hearing on Aug. 24 in an effort to craft a formal public policy that walks the line between protecting citizen safety and unfairly stifling free speech.

BART board president Bob Franklin asked his staff for a policy that reflected the concerns of the American Civil Liberties Union and other First Amendment advocates that would allow for a disruption of cell service only if there is “an extreme case when our passengers are imminently at risk,” according to the Los Angeles Times.
But defining “imminent risk” is a challenge, scholars say.

“I think the key words to watch here are ‘might be,’” says Paul Levinson, a communications historian and First Amendment expert at Fordham University.

“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.”

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.

Professor Jesse Choper, a First Amendment specialist at the University of California, Berkeley’s Boalt School of Law, says the operative words are, “time, place, and manner.”

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.”

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