BART SF 4: More on First Amendment Analysis

Yesterday, I discussed First Amendment doctrine and the BART mobile phone shutdown. I argued that the courts, in interpreting the First Amendment, should be less forgiving of an agency’s “content-neutral” restrictions of speech. I also noted that BART’s action was probably not content-neutral, though BART could perhaps argue that it was. (TechCrunch, one of my favorite tech sources, discussed the post.)

I want to continue on this discussion. Professor Eugene Volokh–one of our nation’s greatest constitutional scholars–concludes that BART’s actions are “likely” constitutional. I am not so sure. Volokh also added an update mentioning parts of the BART’s policies that seem unconstitutional.

Both of us are less than certain (using terms like “likely”), partly because First Amendment jurisprudence has so much ambiguity in it. Let me explain some of that ambiguity. It comes partly from the courts trying to make First Amendment doctrine less ambiguous and employing multiple formal looking tests. But these tests don’t really provide a structure of analysis getting to the important issues. They kind of hide the ball, in fact.

Volokh says (and I will translate the necessary legalese) that BART’s action is likely constitutional because: BART stations aren’t “traditional public forums” that must be open to all speakers. Rather, they are “nonpublic forums,” in which government can make “reasonable” and “content-based” restrictions.

Quick translation. Doctrinally, there are several categories of government property. Some non-lawyers suggest that, because BART need not provide the phone network to begin with, it can censor the network however it wishes. That’s not true. Government property can be classified under one of several doctrines.

Government-owned streets, squares, parks must be open to all speakers. They’re called “traditional public forums.” Government can restrict speech in these traditional forums but generally only if it does so unrelated to the content of speech. The restrictions must be (to begin with) content-neutral. But in nonpublic forums–meaning a lot of other government property–government need only act reasonably and “not an effort to suppress expression merely because public officials oppose the speaker’s view.” Meaning a law can’t be viewpoint-based, which is more targeted than merely being content-based. Finally, speech bans in nonpublic forums are most likely unconstitutional.

Let’s assume, first, that BART is a nonpublic forum. Even if BART is a nonpublic forum, I don’t think shutting off the phone network for all users is a “reasonable” response to fearing a political protest. Plus, this might be a ban of a means of speech, no less than banning leafletting. More importantly, it’s hard for courts to determine the motive of an agency that silences speakers. Elena Kagan and Volokh have written great articles building on that insight. But, based on this difficulty, courts likely would (or should) presume that a government agency is making an “effort to suppress expression” out of disagreement with the speaker’s view when the speakers’ view is to criticize that very government agency. Here, the protestors were specifically protesting BART’s policies and actions. They would use phones to organize the assembly; this kind of demonstration, common around the world, even has a term: a “flash mob.”

What if the BART station wasn’t a nonpublic forum? It could be, in fact, a “designated public forum.” What’s this third category?  And what’s its test? Well, government can open property up and create (or designate) a public forum. If it does, the usual rules of traditional public forums apply. But there’s a lack of clarity of how a government can designate a forum and whether government can revoke the designation. (Does censoring mean that government has wrongly censored or does it mean that government has un-designated the forum by closing it to speech?) Further, can government designate the phone network in the BART to be a forum–designated to all speakers–while not also designating the platforms? For example, the government may have designated the postal service but not the postal roads as forums for speech; and the federal government doesn’t need to provide postal service just as BART needn’t provide phone service. Also, which actions or words would designate the BART phone network?

Assuming the network is a designated public forum, then the BART couldn’t have acted out to suppress particular content. Again, courts may presume that BART was targeting particular content. Further, and more importantly, BART could not suppress speech in a content-neutral way  if BART burdened (far) more speech than necessary to advance an important content-neutral goal. It seems BART did burden far more speech than necessary to advance the goal of safety–nobody could use their phones, not even to organize a small peaceful protest or call a friend.

Finally, doctrine has another wrinkle. Government property used to engage in government speech is treated differently from all these forums. While the courts keep invoking “government speech,” their use of the doctrine is unclear. At any rate, government has broad leeway to speak with its own property, if this doctrine applies rather than a forum doctrine. I can’t see how a phone network at BART stations, available for all passengers, is “government speech.” But the courts’ doctrines could be clearer.

This tour might make you agree with a friend of mine who likens speech doctrine to the complexity of the IRS code.

I think we should ask a simpler question in public debate, and I think this question probably drives the courts’ decisions. I think the tests above aren’t a structure for analysis but a veneer to make analysis look rule-like. What we and courts should ask is: “What kind of democracy do we want?” That is, what does a democracy require in terms of the availability of connection tools to speak and assemble.

Answering this question will shape our rights at home.

And the world is watching our guidance abroad.

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