This month, San Francisco’s Bay Area Rapid Transit system disabled service in an effort to thwart protests organized by the group Anonymous. Although cell phone service was only disrupted for a few hours, experts are debating whether BART violated the first amendment or were simply acting in the public safety.
BART officials point to the court’s 1969 decision in Brandenburg v. Ohio that speech is not protected when it is “directed to inciting or producing imminent lawless action.” They attempt to set up an easy test: Speech is protected outside BART’s gates, but people may not “conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas.”
Ammori and Risher said that BART’s test is too broad; wearing a T-shirt or button supporting a candidate or cause has been deemed an expressive political activity. And even if the platforms might be considered a nonpublic forum, government restrictions must still be reasonable and viewpoint-neutral. They don’t think BART’s actions would meet those standards.
Public safety, technology and the First Amendment collide in San Francisco’s subway
The protesters were planning to disrupt transit service, using cellphones and social media to coordinate the demonstration and avoid police. Citizens originally began protesting in July when a transit police officer shot a man; organizers had planned another protest for August 11 before BART officials decided to disable wireless service.
Officials argue that shutting down service kept riders safe and service running smoothly. However, the ACLU informed BART that they cannot selectively deny service to those that disagree with them. BART’s decision has also sparked unfavorable comparisons to Egyptian leader Hosni Mubarak. What do you think? Did BART go too far? Are governments ever justified in limiting access to social media?
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An interesting if less sexy technical question from the fed perspective is whether the action was also a fundamental violation of telecommunications law. See http://www.publicknowledge.org/public-interest-groups-ask-fcc-declare-bart-action
My direct answer is “no.” In my opinion, for BART to disable wireless service does not block ample alternative channels for communication, such as flyers. What is removed is perhaps the immediacy and reactionary, if not the means, of communication, which doesn’t cross my threshold for violation of free speech. Much as yelling “FIRE!” in a crowded theatre is not a protected form of free speech, I also don’t see wireless service forming the foundation of a right protected free speech, either. My two cents.
Tried to start this discussion a while back: https://www.govloop.com/profiles/blogs/where-is-the-line-between-public-safety-free-speech-and-the-right