China censors Google and other search engines to prevent activism. During the Arab Spring then-Egyptian dictator Hosni Mubarak shut down cell-phone service in an attempt to control protesters in Tahrir Square. Can we now add to this list of oppressive regimes the transit authority in the San Francisco Bay Area?
On August 11, Bay Area Rapid Transport Police intentionally interrupted wireless mobile communications for three hours on platforms and in train cars because of online rumors that there would be a protest in response to the police shooting of Charles Blair Hill on July 3. (The protest never happened.) BART police say Hill was drunk and wielding a bottle as a weapon and had a knife. Likely escalating tensions was the fact that, less than a month before, another officer, Johannes Mehserle, was released from prison after serving one year of a two-year sentence in the high-profile fatal shooting of an unarmed passenger, Oscar Grant. The Grant shooting was caught on a mobile phone's video camera and posted on YouTube.
BART authorities say they did not phone-jam -- which would violate the Federal Communications Act -- but shut down the repeaters that allow communications on their underground system. The fact that BART's actions apparently did not violate federal statutes does not mean, however, that these actions don't pose serious legal issues.
Communicating in order to organize a protest in public space is a core component of freedom of speech and assembly protected by the First Amendment, so the possible constitutional problems with BART's actions seem obvious. The issues, however, are more complex than they might appear at first glance. Current Supreme Court doctrine, established in the 1983 landmark ruling Perry Education Assn. v. Perry Local Educators' Assn, gives the government wide latitude to regulate speech on "public property that is not, by tradition or government designation, a forum for public communication." BART's position is that the train platform and cars are not public forums, and therefore the public agency is within its discretion to interrupt wireless access to suppress a protest.
This argument is highly dubious, however, in at least two respects. First of all, as staff attorney Michael Risher of the Northern California American Civil Liberties Union says, it's far from clear, regardless of the status of the subway cars and platform, that the wireless network itself shouldn't be considered a public forum. The actions of the BART Police affected many passengers who weren't interacting with or affecting other passengers in any way. It's also worth noting that the idea that subway cars and platforms aren't a public forum isn't a long-standing designation -- it was made up to justify shutting down the network.
Even if we assume for the sake of argument that BART's actions were not restricting speech in a traditional public forum, Perry does not give states the unlimited right to suppress speech even on public property that isn't clearly a public forum. To be constitutional, state actions have to be reasonable and viewpoint-neutral -- that is, they cannot be designed to permit some views but suppress others. (For example, states can prevent the distribution of religious literature on state property that isn't a public forum, but they could not allow some religious groups and not others to distribute literature.) BART's actions are difficult to defend on either of these grounds.
On the first point, it's hard to see how the regulations are reasonable even if the protest could turn violent. The policy was overbroad, targeting a large number of passengers who were not potential protesters but were relying on having access to mobile devices. On the other hand, it's not even clear how effective the regulation would be should a legitimately dangerous violent protest emerge, since organizers outside of cars and platforms could still use their phones and other mobile devices, and passengers in cars and platforms who found their phones jammed could communicate verbally. Even if one accepts that the threats cited by the BART Police are real -- in itself a highly dubious proposition -- the draconian withdrawal of any wireless access was not reasonably tailored to meet the threat.
BART's actions are even harder to defend with respect to the second criterion. The most disturbing aspect of this case is the fact that BART Police took an unprecedented action suppressing free speech with the object of preventing a protest against them. Given that there was no concrete evidence of any threat to passengers, it is hard to avoid the conclusion that far from being viewpoint-neutral, the decision to shut down cell-phone access was targeted at speech that the BART Police didn't like. This is precisely why we require even otherwise valid restrictions on speech to be viewpoint-neutral; it strikes close to the heart of the First Amendment for state actors to be in the self-serving position of deciding what kinds of political speech are acceptable and which are not. Allowing BART Police to take unprecedented actions that effectively suppressed criticism of their own department would set an extremely bad precedent.
Above all else, shutting down cell-phone service makes clear that responsible governments should set policies that protect individual access to mobile devices except in the case of genuine emergencies, and establish clear, transparent decision-making processes. BART's lack of a policy governing mobile access left the door wide open to arbitrary anti-speech actions, and in a policy vacuum, power abuses are inevitable. Let's hope BART administrators will be compelled to address this issue, and Bay Area voters will hold them accountable. If not, it's likely that this case or a future abuse of power will end up in the courts. If this happens, the judicial branch must make clear that the First Amendment cannot tolerate regulations specifically targeted to suppress political discourse and action it disapproves of.
