by Jack Escobar

Charles Hill is dead. On July 3rd of this year, Bay Area Rapid Transit (BART) police officers killed him with three shots to the chest, allegedly after Hill threatened them with a knife. The incident sparked unrest among San Franciscans, some of whom charge the BART officers with cold-blooded murder. The police command maintains that its men were acting in self-defense. BART’s police department recently released footage from a surveillance camera that shows a limited view of the killing. Protesters gathered at San Francisco’s Civic Center Plaza on July 11th, eight days after Hill’s death, for a peaceful demonstration.

While BART might have been willing to stomach a protest at its business offices, it was unwilling to countenance demonstrations on train platforms. When transit administrators discovered that a flash mob was planned for August 11th, they immediately moved to shut it down. For three hours–four to seven p.m.–BART disrupted cell phone service in order to forestall the gathering. The move was unprecedented and controversial; call it San Francisco’s first jackbooted step into a brave new world.

Are we seeing the future of dissent in America? It depends whose interpretation of the law you believe.

Ever since BART’s unilateral service interruption, speculation has run rampant over whether the move was legal. The FCC is investigating whether the transit authority violated federal telecom laws, and eminent legal scholars have weighed in on both the pro-BART and anti-censorship sides of the debate. Among the questions at hand: when we’re on public transit, is our right to speak to each other–and, via the internet, the rest of the world–entirely in the hands of our local lords? Do we have to satisfy the city bureaucracy that our words won’t cause an imminent breach of the peace before we’re allowed to organize mass gatherings? Are we allowed to use BART property to complain about the San Francisco transit police and its disturbing tendency to kill suspects? If a BART platform isn’t a “traditional public forum,” should we simply be happy we’re allowed to speak there at all? Does objecting to the BART blackout make us ingrates?

In wrestling with these questions, we should look to the text of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Thanks to the Fourteenth Amendment, state and local governments are also bound to respect the public’s rights to speak, to publish news, to peacefully assemble, and to petition the Government for the redress of wrongs. However, the courts have traditionally held that these rights are subject to reasonable restrictions on the “time, place, and manner” of their exercise.

Here, when BART decided to institute a mobile-media blackout, it abridged the protesters’ freedom of speech, it dispersed what was anticipated to be a non-violent gathering, and it silenced the press. (It seems likely that this revolution would have been live-blogged.) Moreover, BART sought to deny San Fransciscans the right to ask (loudly and publicly) for redress of their grievances against the local government. The essence of the protesters’ message is that BART wrongfully killed Charles Hill and the people want justice. However much the California government may not want to be openly chided for its acts, this desire cannot outweigh the right of a free people to be heard. The city administration has an obligation to refrain from shutting down everybody’s internet access just because BART’s version of Mayor McCheese is a little shaky in his boots.

Second, as attorney Charles Feld points out, the question of whether a local government can interfere  with phone service in order to clamp down on undesirable speech is not novel, and it has never been permitted. 47 U.S.C. § 202(a)(3) announces the clear federal command that “[n]o carrier shall discontinue, reduce, or impair service to a community, or part of a community, unless and until there shall first have been obtained from the Commission a certificate that neither the present nor future public convenience and necessity will be adversely affected.” Anyone who wants access to telecom services must be allowed to get to them, and the Government may not discriminate between consumers. Local brownshirts might find a good reason to shut down phone service in whatever circumstances, but they have no independent discretion to do so. They MUST ask the FCC for permission first. Because Congress has established a uniform national policy regarding access to telecom networks (including wireless internet service), it has exclusive power to decide what that policy is, and what local governments can and cannot do in implementing it.  In this sense, the BART protests raise the same legal issue as Arizona’s own Proposition 203 (our medical-marijuana initiative) and SB 1070: can a state override federal policy whenever it has “good cause” to do so? In our federalist system, the answer has always been no.

On the other hand, Constitutional scholars including Eugene Volokh maintain that BART is free to interrupt our communications with no fear of reprisal from us common folk and our tiny pitchforks. Volokh points to International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 762 (1992), for the proposition that a subway station, as a semi-public thoroughfare, is a domain outside the reach of the First Amendment and federal telecom law. In other words, BART’s legal position would be that it provides a transportation service, not a soapbox.

But, consider the California case, People v. Brophy, 120 P.2d 946 (Cal. App. 1942), discussed in Feld’s article. There, the California prosecutors insisted that they knew that a bookie was running a gambling service over the phone, and that the police were therefore justified when they cut off Brophy’s phone service. The court disagreed, squarely holding that the power to discontinue phone service belongs to the administrative agency in charge of the phone network, not to law enforcement. If the police were so troubled by what they knew, the court reasoned, they had ample opportunity to present their case to the agency legally empowered to  decide when service may be cut off. According to Feld, the “traditional public forum” inquiry advocated by Professor Volokh and Krishna Consciousness is nothing more than a red herring.

BART’s response will be that flash mob protests endanger BART’s smooth operation, creating a civic emergency. “Of course we shut down the protest,” the transit authority will say, “the trains have to run on time.” The Government never takes open criticism well. Is the case against a demonstration organized by Twitter any stronger than the case against protest in general? If the First Amendment is going to mean anything in the 21st Century, the answer has to be no.

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