Free Speech Rights: Here, There, and Everywhere (BART SF)

A spokesperson for BART said that transit riders “don’t have the right to free speech inside the fare gates.”

That’s not accurate. I am guessing the BART spokesperson misspoke or was speaking figuratively. But the quote is a good opportunity to explain where we have speech rights.

We have them everywhere. Or at least everywhere in the US when government applies its power.

The First Amendment provides us the right to freedom of speech (and press, assembly, and petition). That right applies everywhere, though to a greater or lesser extent depending on the type of space. It’s certainly true that BART passengers have the right to free speech beyond fare gates; the question is what rights passengers receive there.

To see that speech rights must exist everywhere, consider the coffee shop I’m sitting in. It’s privately owned. Generally, the private owner can ask me to leave (as she wishes) if I am bringing a ruckus–or if I start protesting. But if I don’t leave when she asks, she will then call  the police. The police will protect private property, based on a government law of trespass, a kind of regulation backed by government power. Generally, enforcing private property rights doesn’t trigger much First Amendment concern. But let’s say the coffee shop owner calls every time there’s a protest. Every time, the officer taking the call asks, “What is the person protesting?” If the answer is, “He’s protesting the Republican leadership,” the officers arrive quickly. If the answer is, “He’s protesting the Democratic leadership,” the officers take their time, or never arrive. Even then, in a private coffee shop, the discriminatory enforcement based on viewpoint-of-speech seems probably violates the First Amendment.

In fact, there are some limited free speech “easements” to private property rights (here or here).

On government-owned property, however, the First Amendment goes even farther. Some government-owned property is a “traditional public forum”; this includes public streets and public parks. Other government-owned property is a “nonpublic forum.” This is not the most descriptive term. It probably covers the BART platforms. But even in areas like these, we still have free speech rights. In a nonpublic forum, government must act reasonably and must act without discrimination based on the speaker’s viewpoint. Reasonable is a low threshold, but it’s not nothing.

I have already written that I think shutting off cell service doesn’t seem “reasonable.” I also think that shutting stations and/or cell service to silence a protest against government appears likely viewpoint-based.

This isn’t to take away from the BART officials or to criticize the them. They and law enforcement do have a tough job when facing a protest. As Orson Welles wrote, “A policeman’s job is only easy in a police state.” Balancing liberty and security, under pressure and scrutiny, is what makes the job difficult.

If the spokesperson for BART reflects BART’s understanding about freedom of speech at stations, then BART’s leadership is wrong. BART cannot act as though people have no speech rights in BART stations. Rather, the leadership and enforcement officials should be aware that reasonableness and viewpoint-neutrality standards apply even within the stations.

If the spokesperson misspoke, he has a right to speak (anywhere) to correct the statement.

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