Michael T. Risher, ACLU of Northern California
Our biggest concern is that we don't think the government should be shutting down an entire communications system to prevent a political protest. And certainly if they're going to be in a position to do that, there needs to be a policy that states that will only happen in the most extraordinary circumstances.
We all have the right under the First Amendment and the California Constitution to speak out and to demonstrate in public places. We also have the right to assemble, to protest government action. When we have government shutting down a communications network to prevent assembly, to prevent protest, to prevent criticism of the government, that really goes to the core of the First Amendment.
To be clear, the First Amendment doesn't protect the right of people to disrupt train service, and the government may impose reasonable restrictions on protest. But they can't simply shut down a park because they don't want an unpopular group to come protest there; they shouldn't be shutting down a communications network just because they don't like what's being said on it. That's contrary to the First Amendment.
Professor Eugene Volokh of UCLA
As to the federal constitution, based on press accounts of what the facts are, it seems to be that BART was acting within its constitutional power. It doesn't mean it’s a good idea… but the important thing is that BART was turning off cell phone hardware that was on its property that it either owned or had control over. That's very different from the government shutting down private networks or interfering with communications on private property or for that matter on streets and parks, which are treated similar to private property in this respect under the First Amendment.
When we're talking about government property, government transportation networks, which the U.S. Supreme Court has said are non-public forums under the First Amendment, the government as owner of the property has quite broad authority to restrict a wide range of communication on that property. The only requirement is that the restriction be reasonable and viewpoint neutral, and these are generally requirements not hard to satisfy and would be satisfied in this case. Again there's a very big difference between them acting on its own property…versus on private property.
To give one example, at UCLA Law School, we have provided free wireless to students, but we turn it off in classrooms because we're afraid students will get distracted by it. Likewise, it seems to me that BART can say we're all about providing convenience and reliability to our riders, we've added the telephone network for the sake of more convenience for riders, now it looks like this network will be a source of inconvenience, not just because there will be a political protest but as I understand it, the expected protest would have involved illegal blocking of trains and disruption of service. So in order to continue providing maximum convenience and reliability, we're going to temporarily shut down the cell phone hardware that we had no obligation to provide in the first place. As for the California constitutional rule, that's more unsettled, though I suspect California courts would reach a similar result.
Michael T. Risher, ACLU of Northern California
We don't have here BART just keeping access off in particular areas like a classroom. We have it responding to a call for protest by shutting down a network. And I think that raises very different censorship issues than having content-neutral areas where you have service and areas where you don't.
The California Supreme Court has held that a train station is an appropriate place for non disruptive protest. Now non-disruptive might be key here, but the fact that it's the government equipment, the governments' property doesn't really convince me.
The government doesn't have to build a park, but once it does so, it has to allow demonstrations there, and certainly it can't lock gates to the park when an unpopular group shows up to protest, simply because a government doesn't like its message. So I think this is new territory, and applying the old concepts can be difficult, but there's no question that what BART did affected the communication ability of thousands and thousands of customers as well as the ability of people to organize a political protest.
Also on Forum, Lynette Sweet, a BART board director, said (or complained really) that the BART board was not involved in the decision to shut down phone access. She said the board was informed at the end of a board meeting that there was a simultaneous press conference going on regarding security measures for the night's protests. "The Item wasn't on agenda," she said, "so it wasn't a topic we could even discuss among ourselves because of the Brown Act."
"I'm still just a little concerned that the board of directors, the policymaking body, did not have a voice in this. We're held accountable by the public for BART's actions, and if I'm going to be held accountable, at least allow me the privilege of voting to say yes or no on doing something that drastic."
Sweet said she will put the issue on the agenda at a future meeting.