BART puts social media crackdown in 'uncharted' legal territory

Ongoing clashes between the Bay Area Rapid Transit authority and protesters rallying against the shooting death of a homeless man by BART police July 3 are raising new questions about where society can draw the line between free speech and public safety in a high-tech world.

Several legal analysts say the case could raise legal conflicts that could be resolved only by the US Supreme Court.

The dispute centers on a decision by BART officials to shut down cellphone service last Thursday to prevent a planned protest. The protesters were expected to rely heavily on smartphones to organize the rally via social media. The decision thwarted the protest and drew criticism from free-speech activists as well as Anonymous, the loosely knit band of online hackers that broke into a BART website in retaliation.

BART officials chose not to cut cellphone service during a Monday protest, which led police and transit officials to shut down four BART stations during evening rush hour. The previous decision lingers, however.

“This is loaded with legal issues that could go one way in a district court and another in a circuit court, but the US Supreme Court is the only one that can really clarify them definitively,” says Jesse Choper, a constitutional law professor at the Boalt Hall School of Law at University of California, Berkeley. “Both sides will have lots of ways to articulate their cases, and it will be compelling to see where it all leads. This is substantially uncharted territory.”

In San Francisco Monday, many protesters carried signs with comments such as, “I believe in free speech,” "Stop police brutality,” and “Protect Free Speech.”

Meanwhile, the American Civil Liberties Union of Northern California sent a letter to BART officials demanding that the agency permanently prohibit the shutting off of cellphone service to thwart protests. The Federal Communications Commission issued a statement saying it is investigating the matter to assess “the important issues … including public safety and ensuring the availability of communications networks.”

The criticism from First Amendment scholars has been fierce.

“The BART action to restrict free speech so that the actions of a few could be curtailed is not warranted,” says Rita Kirk, director of the Cary M. Maguire Center for Ethics and Public Responsibility at Southern Methodist University in Dallas. “In fact, the very medium they tried to curtail has been used in Great Britain to bring thugs to justice.

"We will never be able to silence the voices of those who feel the need to express themselves despite the efforts of government to stop them," she adds. "Instead, we must affirm the wisdom of the Supreme Court when it held that the best defense against bad speech is more speech.”

Others agree.

"It's quite clear where the line should be drawn: You cannot limit the rights of law-abiding citizens in an attempt to stop criminal activity," says Paul Levinson, author of “New New Media” and a professor at Fordham University in New York. "BART's stopping of cellphone service is a distressing step away from the Bill of Rights toward a totalitarian society. This is a bigger disturbance of the peace than caused by the flash mobs."

The potential legal issues in the case include: how reasonable law enforcement responses were, and what were available alternatives on both sides.

While many legal scholars say BART went too far, they stop short of agreeing with protesters that the government should be compared to those in the Mideast.

“While this is distressing, it is very clear that this is not Egypt,” says Professor Choper. “Over there, they just cut off all protest together, here [BART] was just telling protesters, ‘Hey, you can’t disrupt these platforms and delay these trains.’ You don’t have a right to speak in any place and any time. You can’t have a protest on the Bay Bridge during rush hour.”