By Justin Silverman

When the Bay Area Rapid Transit (BART) shut down cell phone service at various train platforms on Aug. 11, it did more than prevent the protests it expected to occur at its stations. The shutdown also sparked a national debate over whether such an agency can constitutionally interfere with the public’s ability to communicate via phone and Internet, and if so, under what circumstances. What may seem at first blush like a state’s desire to remove a leaflet from one’s hand or to silence the words from one’s mouth, is ultimately a more complicated matter involving several areas of law. 

A summary of the situation: Protestors began using train stations last month to voice their anger over the killing of a homeless man by BART officers on July 3. In one demonstration, protestors gathered at the Civic Center Station in San Francisco on July 11 where,according to BART, at least one person climbed on top of a train and others blocked train doorways and held train doors open. Other stations were completely or partially shutdown as a consequence. When BART officials learned that a similar protest may have been planned for Aug. 11, they decided to block all cell phone service at certain spots on the railway. The unprecedented action intended to prevent potential protestors from using social media to help others avoid police while demonstrating.

Whether or not BART’s interference actually prevented such a protest is uncertain. What it did do, however, was spark the outrage of commuters, civil libertarians, and the activist group Anonymous, among others. Many of these critics now compare BART to the oppressive regimes that tried to squelch recent uprisings in the Middle East. One popular Twitter hashtag, #MuBARTek, compares the transit authority with Egyptian president Hosni Mubarak, who earlier this year oversaw a massive Internet shutdown ahead of planned protests in Cairo. As unfair as the comparison may be, it does highlight the apparent hypocrisy of a country touting social media as a matter of foreign policy, while allowing a state agency to shutdown that expression at home.

“We’re watching how China has responded to new technologies, how Iran has responded to new technologies, Egypt and other countries,” said attorney Marvin Ammori, a visiting scholar at Stanford Law School’s Center for Internet & Society, on a recent Lawyer2Lawyer podcast. “It is a pillar of our foreign policy, that we believe in tools that connect people and that promote freedom of speech elsewhere, and we really need to live up to that here.”

In the context of BART and the First Amendment, leading experts disagree as to whether we are living up to the standard described by Ammori. Compare Professor Eugene Volokh with Abdi Soltani of the Northern California ACLU, for example. Though phone service shutdowns to prevent protests have yet to be addressed by the courts, there is a significant amount of caselaw that can help put BART’s actions into perspective. Most relevant are decisions related to prior restraints and the public forum doctrine.

“We’re not going to throw out 220 years’ worth of thinking about the way we communicate with each other and the way we express ourselves, the way we petition government for change, the way we assemble,” said Gene Policinski, executive director of the First Amendment Center, on NPR’s Talk of the Nation. “So while the technology is a new wrinkle, I think we can look to a lot of settled law and principles that we hold dear to really guide us through this.”

Prior Restraint

There is a presumption against prior restraints; if punishment or remedies against a speaker are permitted at all, the law generally allows such remedies only after he has spoken. Near v. Minnesota, 283 U.S. 697 (1931). BART officials clearly had this in mind when they wrote its Aug. 20 letter to the public, referring to an “imminent threat of unlawful and dangerous activities.” The wording is taken straight from Brandenburg v. Ohio, a 1969 U.S. Supreme Court case that prescribed a two-part test to determine when a state may prohibit public speech. Under Brandenburg, speech can be prohibited if (1) it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)See also Near, 283 U.S. 716 (holding that “the security of the community life may be protected against incitements of violence and the overthrow by force of orderly government”).

BART claimed it had enough evidence to satisfy these tests. “The August 10 intelligence revealed that the individuals would be giving and receiving instructions to coordinate their activities via cell phone after their arrival on the train platforms at more than one station,” they wrote. “Individuals were instructed to text the location of police officers so that the organizers would be aware of officer locations and response times. The overall information about the planned protest led BART to conclude that the planned action constituted a serious and imminent threat to the safety of BART passengers and personnel and the safe operation of the BART system, at a level that could far exceed the protest of July 11.”

Criticism of this reasoning appears two-fold. There is skepticism about the amount of danger, if any, that would have been posed by cell phone use without any restrictions in place. There is also a general sentiment that given the strong disfavor of prior restraints by government, BART could have utilized other tactics to combat unruly protestors. It did not need to interfere with how its commuters communicated.

“No protest manifested itself precisely because it was not possible to communicate, and that is the very definition of a prior restraint on free speech,” Eva Galperin of the Electronic Frontier Foundation toldNPR. “BART put police on the platforms in order to prevent people from doing anything dangerous. And it’s possible that that would have been enough, that muzzling people’s free speech at four stations all over downtown San Francisco may not have been necessary.”

Those defending BART’s action are quick to note that there is no constitutional right to use a cell phoneand that the restriction itself did not prohibit speech, but only the manner in which that speech was communicated. But critics like Policinski say this thinking seems to miss the point. There is a larger issue here that can be overlooked because of the new technology involved, he said. Policinski compared the situation to “an editorial somebody might feel would incite violence in a newspaper and coming in and seizing the printing press, preventing it from printing all kinds of other information… We have no trouble there saying that this is overbroad, that this has no place in constitutional law for permissible interference by government.”

Public Forum Doctrine

In its Aug. 20 letter, BART officials distinguished a train platform from a traditional public forum, such as a park or sidewalk. “BART has designated the areas of its stations that are accessible to the general public without the purchase of tickets as unpaid areas that are open for expressive activity upon issuance of a permit subject to BART’s rules,” they wrote. If this distinction is made, BART can legally restrict all speech on train platforms so long as their policies are view-point neutral. If the distinction is not made, however, any policy they enact to limit speech will be judged using far more rigorous constitutional tests.

Public fora, such as parks and sidewalks, have “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”Hague v. Comm. for Indust. Org., 307 U.S. 496, 515 (1939). The First Amendment right to use such areas, however, is not absolute and under certain circumstances the state may regulate the speech that occurs there. If government seeks to regulate speech based on its content, it must show that the regulation at issue “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n. v. Perry Local Educations’ Ass’n, 460 U.S. 37, 45 (1983).

If the train stations are to be considered a public forum, the next question is whether or not the cell phone restriction is based on content. Wrote Volokh:

[BART’s cell phone restriction] is facially content-neutral, but the justification is related to the content of the speech that the government is worried about. The government isn’t just trying to prevent physical disruption caused by the non-communicative effects of cell phones, as with the restrictions on cell phones on airplanes, but physical disruption caused by what people communicate to each other using cell phones. I think that it should suffice to make the restriction content-based.

As explained, a content-based restriction must serve a compelling state interest and be narrowly drawn. Public safety is almost always considered a compelling state interest. The breadth of the restriction, however, is a trickier question to answer. “The question here was, was shutting off cell phone service and Wi-Fi service the appropriate way?,” Policinski said. “Could they have simply closed stations or limited the number of people?”

If the restrictions are content-neutral, the state has more authority. It can regulate the time, place and manner of speech so long as those restrictions are “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Perry Educ. Ass’n., 460 U.S. 37 at 45. BART claimed such alternative channels existed: The “temporary interruption of cell phone service was not intended to and did not affect any First Amendment rights of any person to protest in a lawful manner in areas at BART stations that are open for expressive activity. The interruption did prevent the planned coordination of illegal activity on the BART platforms, and the resulting threat to public safety.”

But it also prevented the planned coordination of legal activity, noted Policinski. “What was the alternative here for people who wished to do nothing more than protest BART’s actions in this shooting that took place about a month ago?” he asked. “Shutting down that cell phone service both shut off those alternative means of communication and as well as my ability to call home for an emergency….”

If the train stations are considered non-public fora, BART wields far more power to restrict speech. Public facilities can fall outside traditional public forum status if they were created for purposes other than expressive activities. An airport terminal, for example, is a non-public forum because it is “among those publicly owned facilities that could be closed to all except those who have legitimate business there.” United States v. Grace, 461 U.S. 171, 178 (1983)Int. Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992). If a certain location is deemed to be a non-public forum, the government can discriminate between speakers and messages, so long as the regulations are view-point neutral.Adderley v. Florida, 385 U.S. 39 (1966).

Because the BART stations are government-owned and created for transportation purposes, they likely fall into this category. The nature of these locations seems more aligned with an airport terminal than a town square. Although the restriction may be content-based because it intended to suppress discussion about protesting, it did not distinguish between different opinions on the protest. When addressing a non-public forum, “the government has a good deal of authority to impose content-based but viewpoint-neutral and reasonable restrictions,” Volokh wrote. “And the restriction here did seem to be both viewpoint-neutral and reasonable.”

Still, cell phone use is normally permitted and as the ACLU of Northern California wrote: “While the government has no obligation to build a public park, once it does so, it cannot shut the park gates to speakers with whom it disagrees.” In other words, as soon as a venue opens its doors to public speech, those doors cannot be closed.

“Cell phone service was originally brought into the BART stations, on the platforms and in the trains, shortly after 9/11, when it became clear to people how useful it was to public safety to have widespread, ubiquitous use of cell phones for people so that in an emergency, they could contact the authorities, they could contact the police, they could contact their loved ones and their families,” Galperin of the EFFsaid.

“While BART is not under any obligation to provide cell phone service, either in trains or on platforms, they did make it available, and the fact that they took it away specifically to prevent a protest is highly disturbing.”

Justin graduated from Suffolk University Law School in 2011 and served as founding president of Suffolk Media Law. He is currently a law clerk at the Boston firm Prince Lobel & Tye and also contributes to the Citizen Media Law Project, where this post first appeared. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @MediaLawMatters.

(Images courtesy of Flickr users mrgarin and K. Todd Storch. Licensed under a Creative Commons license.)