Did BART Deny People Freedom of Speech by Suspending Cell Phone Service?

08/20/11

According to the article at rathbunlibrary.com, ''Hackers Retaliate Against BART'', after Hill's death on July 3, the following events, among others, took place: On July 11, protests concerning the Hill shooting led officials to shut down certain stations. On August 11, BART officials suspended cellphone service at four stations, effectively cutting off the use of smartphones, and thus the social media that was believed in use to organize the protest, to thwart what they believed could be a dangerous protest.

It is this action that has come under harsh scrutiny, by legal analysts, civil liberties groups, and private citizens. The Federal Communications Commission is also assessing the situation.

According to the August 16^th csmonitor.com article, ''BART puts social media crackdown in 'uncharted' legal territory'', legal analysts predict BART's decision to suspend cell phone service might go all the way to the U.S. Supreme Court.

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Jesse Choper, a constitutional law professor at the Boalt Hall School of Law at University of California, Berkeley, was quoted as saying in the csmonitor.com article: ''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. 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.''

FCC spokesman Neil Grace was quoted as saying in the August 16^th wsj.com article, ''Phone Cutoff Stirs Worry About Limit on Speech'': ''We are continuing to collect information about BART's actions and will be taking steps to hear from stakeholders about the important issues those actions raised.''

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Rita Kirk, director of the Cary M. Maguire Center for Ethics and Public Responsibility at Southern Methodist University in Dallas was quoted as saying in the csmonitor.com article: ''The BART action to restrict free speech so that the actions of a few could be curtailed is not warranted. 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. Instead, we must affirm the wisdom of the Supreme Court when it held that the best defense against bad speech is more speech.''

The actions of BART cannot help but bring to mind the opinion of Oliver Wendell Holmes, Jr. in the United States Supreme Court case Schenck v. United States in 1919. In that case, it was ruled that it was unlawful to distribute flyers that opposed the military draft during World War I, Holmes wrote, in part:

''The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.''

So, was BART, in suspending cellphone service, and thus 'free speech', avoiding a 'clear and present danger', and protecting hundreds of people in the process? Or was BART merely reacting, and in the process, taking away the right to free speech?

The debate will no doubt continue, as the proliferation of social media continues to evolve.