Was BART’s Cutting Cell Service a Violation of Free Speech?

For what seems to be the first time in the United States, a government agency cut off mobile-internet and phone service to quash a protest demonstration.  Was this a valid and reasonable way to protect public safety or an unlawful infringement on free speech rights protected under the First Amendment?

When it learned of a planned protest in its stations, Bay Area Rapid Transit (BART) authorities made the decision to shut off power to the agency’s wireless networks. The BART board president told the SF Chronicle that its tactic is legal and necessary to ensure commuter safety.

Of course, the protestors and First Amendment advocates see things very differently and compare BART’s action to that exercised by Middle Eastern tyrannies to quell dissent. The Electronic Frontier Foundation (EFF) calls BART’s action

a prior restraint on the free speech rights of every person in the station, whether they’re a protester or a commuter.

In thinking about whether this action was an unconstitutional prior restraint on free speech, we need to remember that governments and public agencies are allowed to restrict demonstrations to designated free speech zones. The government can impose reasonable “time, place, and manner” restrictions when expressive conduct occurs on public grounds as long as such restrictions are

  • content neutral,
  • narrowly tailored to serve a significant government interest, and
  • leave open ample alternatives for communication.

By cutting off cell service for everyone in only the BART stations where demonstrations were planned, and providing officers and landlines for emergencies, BART’s action arguably fits into these constitutional requirements.

What do you think? Were BART’s actions constitutional? Even if constitutional, is this something you see as a useful tool for government entities, or a possible abuse of power?

For more on governmental entities ability to regulate personal conduct, and specifically on issues of regulating free speech, turn to The California Municipal Law Handbook, chap 9.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

8 Responses

  1. It sounds like the restriction on free speech was not content neutral since they specifically targeted anti-BART information based on their intelligence. BART officials were reading this blog: http://nojusticenobart.blogspot.com/, where the protest was planned, and the timing of cell shutdown censored coordination (and freedom of assembly). It also affected people in the ‘free speech zone’ of Bart stations, no matter their involvement in the protest.

    Clear abuse of power.

  2. I agree with Daniel Morgan for all the reasons he stated. As concerns the effect the shut down. on other stations, had there been a medical emergency, the consequences could have been dire. Misguided entitlement.

  3. I disagree with both Daniel Morgan and Laura Craig. Subway stations are not public fora, and if BART prohibits disruptive demonstrations in stations in general, then the tactic of shutting off phone service for this one in particular (assuming this is the first time this tactic has been tried) poses no constitutional problems. After all, there has to be a first time, and since it is used in aid of a more general public policy (enforcement of order in stations), BART wins its case hands-down.

    Of course, if the facts are different, the outcome might be different, for example if BART has allowed other disruptive demonstrations in stations, of which it had been previously aware. That, however, seems unlikely.

  4. I disagree. BART was well within its Constitutional rights to block activity that posed potential harm to patrons and property. The “Flash Mob” phenom causes realistic concerns for those charged with protecting the public. In the realm of “what if” instead of a medical emergency the protest had turned nasty and a person was trampled or injured/killed by the crowd, who would be liable? My best guess is if it was one of the protesters their next stop would be a PI attorney who in my opinion would bring up the fact that BART failed to protect the protester and could have blocked mobile phones to prevent the injury/death.
    Patrick A. Carrajat
    LIR Group, Inc.
    Elevator & Escalator Expert Witness
    917.748.2328

  5. I would say NO. I was under the impression that so long as the government is not hindering your right to speak then it is NOT a violation. Since BART is not a government institution, they did not violate the constitution.

    Also, these types of demonstrations in my opinion are a waste of time and energy when they are only hurting innocent people. Let’s face it, today’s causes are lame…Is it a violation of your free speech when you enter a store and there is no signal? Are mountains and tunnels restricting your free speech rights? NO, get over it people. It’s a cell phone, plus no one wants to sit and listen to some of the conversations from people on the Bart after a long day of work.

  6. How is this an abuse of power? Hello, if they hadn’t done something to stop the demonstrations people could have gotten hurt or even killed. People really take free speech a little too far.

  7. I think this action On Bart wwas very wrong.

  8. […] been programmed to change random bytes of data on a disk or to wipe out an entire hard drive. The protesters against BART recently called for the use of “email bombs” against the transit […]

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