BART cell shutdown unconstitutional? Not so fast
BART’s decision to shut down cell phone service in its downtown San Francisco stations August 11 in order to disrupt a planned protest has drawn howls of outrage from civil libertarians and many riders.
The American Civil Liberties Union called the move “glaringly small-minded” and “dangerous to democracy.” San Francisco mayoral candidates Phil Ting and Leland Yee were among those who joined the chorus of condemnation.
But was the move actually unconstitutional, as many say it is? Probably not, according to California Beat legal analyst Preston Thomas.
“The biggest question here [...] is whether BART is a public forum,” Thomas says. In a public forum, such as a public park or sidewalk, the government’s ability to limit speech is restricted, whereas in a nonpublic forum “reasonable” restrictions which do not “discriminate based on speakers’ viewpoints” are permitted, according to Thomas.
Thomas points to Lehman v. City of Shaker Heights, a 1974 case in which a candidate for political office claimed that a public transit system was violating the First Amendment by refusing to take political advertising.
The Supreme Court, however, disagreed. “Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare,” wrote Justice Harry Blackmun in his opinion. “Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights.”
If BART’s platforms and trains are not public forums, “then the restraint must only be reasonable and content-neutral,” Thomas says.
Given that “shutting down cell phones isn’t anything like a total ban” on speech, Thomas believes BART’s actions would be considered reasonable by courts.
The limited scope of the shutdown — the cell network remained available in BART’s underground stations in the East Bay, and was only offline during the period the protest was expected — allows opponents of the shutdown to argue that the action was content-based, an argument the ACLU advanced in a letter sent to BART Police Chief Kenton Rainey this week.
Quoting Sorrell v. IMS Health Inc., the ACLU’s Abdi Soltani and Alan Schlosser write, “while BART’s disruption of wireless service may have been ‘on its face [...] neutral as to content and speaker,’ BART’s ‘purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional.’”
Thomas, however, calls that argument “an uphill battle,” believing that it’s more likely that BART’s cell phone shutdown would be found to be a “permissible time-place-manner restriction.” The government “can regulate
when, where, and how” you say something “as long as [it doesn't] regulate what you say,” Thomas says.
Perhaps recognizing the low likelihood of success in court, the ACLU and the Electronic Frontier Foundation both said this week that they would not file suit to challenge the constitutionality of BART’s action.
Whether or not BART is constitutionally permitted to shut down its cell phone network, however, may not have any practical effect in the long run — as a district overseen by an elected board of directors, the agency is subject to public pressure. At least one BART board member has criticized the agency’s decision, and the BART board will consider the topic at a Wednesday meeting.
Contact Steven Luo at sluo@californiabeat.org.
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This is America, not Egypt. See 1st amendment.
There’s been a more recent case about the rights of people wanting to advertise on transit–I think it was in TN and involved an atheist group, whose challenge to the ban was successful.
Surely there’s a difference if a transit system is publicly owned, as BART is. Doesn’t that mean it IS a public space in the same way that a park is?
In light of the recent riots in England precipitated by groups of young people using “flash mob” tactics and the real possibility of a danger to the commuting public by an unexpected dense crowd in the targeted station, I think that BART would be remiss in it’s duty to it’s customers if they didn’t take measures to protect them from a potentially hazardous situation.
It is illegal to yell “Fire” in a Theater.
As the article indicates, exactly what consitutes “free speech” is not always a straightforward matter and is open to legal interpretation. Further, free speech is only one perspective from which this situation need be viewed; protection of the public from anti-social behavior and undue disruption of transportation are on the table as well.
Do I have the right to disrupt your day (the day of countless people, really) in a major way in order to preserve my “free speech?”
In the end,liberal values which degenerate into primitive, anti-social behavior is in fact anti-social behavior, regardless of its righteous intentions.
Such protesters do NOT represent “the people”. They are fulfilling their own egoic need to take resist authority, at the EXPENSE of the people.
Doesn’t everyone realize that having cell phone service UNDERGROUND, is a PRIVILEGE, not a ‘RIGHT’?? Bart can shut down their services whenever they want, it’s a system that they paid to have installed and maintained, as a convenience to its customers. Bart is in no way REQUIRED to provide these services.
Since the only service disruptions were within the Bart system and did not extend beyond that, how can anybody claim their 1st amendment rights were violated?? Bart did not and does not stop you from using your cell phone all you want outside of their terminals! You pay to get in there, so if you don’t like it, find yourself another ride and stop being ridiculous. Please find something better to do with your time then protesting this pointless argument, and disrupting the lives of the regular BART riders who just want to go home!
The First Amendment does not supersede the need or right to public safety. This is why you can’t yell “fire” in a crowded theatre. Expression of free speech or lawful protest is should be impaired if either jeopardizes individuals’ safety. Not one protestor was prevented from saying what they had to say; they just couldn’t use BART’s equipment to broadcast their message to a wider audience.