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 told NPR. “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 phone and 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.”

[Part two of the analysis, which is available here, looks at how the BART controversy is impacted by the public forum doctrine.]

Justin graduated from Suffolk University Law School in 2011, and is currently a law clerk at the Boston firm Prince Lobel & Tye. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @MediaLawMatters.

(Image courtesy of Flickr user mrgarin licensed under a Creative Commons license.)