Marvin Ammori

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.