an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
SF BART: Silencing Phones, Stifling Protests, Violating Freedom of Speech?
Yesterday, the Bay Area Rapid Transit (BART) shut off phone service at some BART stations to defuse a "flash mob" protest. The Washington Post reports that the planned protest was a response to transit police killing someone during a confrontation on July 3. BART explained that it respects First Amendment activities--even though it tried to stop a protest criticizing and drawing attention to its transit police.
BART's action has resulted in quite a bit of outrage and comparisons to Egypt's dictator Hosni Mubarek, who ordered Egyptian carriers to shut off the Internet. On Twitter, there's a hashtag to capture the comparison: #MuBARTek. Several free speech advocates have condemned the action, from the ACLU of No. California to the Electronic Frontier Foundation.
I'm sure BART is rethinking its decision and I hope BART and other local authorities across the nation learn from this moment.
Here's why I think BART's move was a terrible idea.
First, BART's move sends a signal to other countries to shut off connection technologies when faced with criticism of government actions. The US strongly criticized Egypt's Mubarek for cutting the Internet. This action undermines our credibility. BART's actions also undermine the federal government's important work on Internet freedom and digital technologies (particularly through the State Department, which I've written about elsewhere).
Second, freedom of speech in a democracy should presuppose access to spaces to speak (including BART platforms) and use of at least your own communications devices to speak, publish, assemble, and petition your government. (I've made this argument elsewhere in great detail.)
While BART's actions were terrible idea, I am not sure if they violate the First Amendment. Here, the problem is with the courts: they have granted government agencies far too much leeway to engage in "content-neutral" suppression of speech. If an agency not targeting speech because of its "content," but only restricting speech generally on a content-neutral basis to further other goals, then government can get away with a lot of suppression. Here, perhaps, BART could argue that it was acting in a content-neutral way, turning off all phones, not just the phones of protestors. BART said a demonstration "could lead to platform overcrowding and unsafe conditions for BART customers, employees and demonstrators." These sound like "content-neutral" reasons.
I don't think that's a great argument; after all, BART turned off the phone network at a specific time that it expected a protest, and a protest directed at transit police. And BART's justification implies a fear the speech will lead to violence; usually stifling speech for this reason requires meeting the very high test set out in Brandenburg v. Ohio: incitement to imminent lawlessness. If BART was trying to suppress speech because of its content or to stop violence, it likely can't meet the constitutional test and has violated the First Amendment.
But courts are often receptive to content-neutral assertions by a government agency. Because courts are receptive, government agencies can often close spaces where citizens gather to speak (or dance). Courts' receptiveness to content-neutral claims is not good for freedom of speech in the US. And courts shouldn't be receptive to claims by the BART, or any other government agency, that it should be able to silence technologies and undermine protests and gatherings merely in the name of safety and order. Such arguments deserve the hashtag of #Mubartek, and judicial condemnation, not the imprimatur of the courts.
My initial reaction to this post was: Is this a paean to our yodeler? But then I woke up and read it and that nightmare was over.
Seriously, this is a serious issue. I'm thinking of what's been happening in London and other British communities in the past few days. While technology advances freedom of speech, it can foster violence with speech facilitated by such technology.
The phones didn't foster the violence. Riots don't happen because people have phones. If we are to admit that they may help in some small way in the organisation of violence, then so what? Are the innumerate press and governments and police attempting to quantify this effect? That the violence was X greater because we allowed Y speech?
That's what a rational society would do. People complaining about phones and the internet during these riots, without acknowledging any attempt to study the problem scientifically, are doing a greater disservice to democracy than any rioter.
Often there is a triggering event that reveals underlying issues that have been known but have been ignored and control is lost not only by those involved in reaction to the trigger but then by the government officials. In between there are innocents who suffer. There are many studies on youth unemployment, racial issues, increasing poverty levels, etc, but just like governments fail to address failing infrastructure, governments fail to address these underlying issues. So, cfr, I don't know if we are really in disagreement. I've seen situations similar to what has happened in Britain happen here in the Boston area. But I don't excuse the rioters or the government. And when these triggers occur during economic downturns, a deeper deficit results.
By the way, I am not a Luddite and have long accepted technology advances as progressiveness. But falsely yelling fire in a crowded theatre comes to mind here. I like the Rodney King approach of some years ago in LA: "Can't we all just get along?"
As for studies, the problem is that good studies are often ignored because it costs money to implement them. And sometimes bridges fail because of failure to maintain them.
I thank crf for his comment. It helps put things in perspective.
1. BART didn't shut off phones, it stopped actively extending cell phone service to underground trains and stations.
2. Likewise, cell service was affected only at those location, and for limited times.
3. No one was prevented from expressing anything. Just go to where your carrier's signal carries, and talk and type all you want. At most a 10 minute delay.
4. BART manages a system with real safety issues. The voltage on the steel third rail is 1000 volts; trains go up to 80 mph; stations are routinely crowded. This is simply not a safe place for a protest, let alone the "action" threatened.
And a little analysis:
1. "Fire in a crowded theater" is an accepted limit on expression.
2. Freedom of expression does not equate to access to a particular forum.
3. The limits here were brief, mild, and tailored to a particular situation. Would anyone seriously argue that limiting cell phone use on a plane is censorship? The limits here were closer to that than to anything Mubarek did.
The FAA restricts certain types of cellphone use across the board for safety reasons. It is a content neutral restriction. There is no viewpoint discrimination.
The poster is incorrect in his content neutral "across the board" analysis This is NOT content neutral. This is viewpoint discrimination disguised as content neutral which runs afoul of the 1st amendment. The purpose of the across the board ban is not for a general safety reasons but to silence the protesters for what they might say. That is prior restraint.
I was not aware that if I had a particular thing to say, the phone service would open up to me. If only I had known! I would have uttered so many acceptable words!
In short, no, this wasn't a content restriction.
Even sillier is the notion that the protesters were silenced. Nothing prevented them from uttering all the words they wanted, on any topic of their choosing. They were free to say, write, sing, dance, and send texts -- same as the rest of us, in a place where it's safe to do all that. And that's exactly what they did yesterday on Market Street. And I fully support their right to do so.
What they don't have the right to do is disrupt train service or endanger riders and BART workers.
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