BART Disruption and First Amendment

I was quoted in the Washington Post yesterday on whether the BART’s disruption of cell service, to disrupt a protest, violated the First Amendment. I said it’s a “hard question.” And it is. But I do think the answer is yes–the disruption violated the First Amendment.

It’s a hard question because one of several tests may apply. I have written a half dozen posts on the issue, so here I’ll include a top line summary, using First Amendment terms, on why I think the legal tests point toward a First Amendment violation (based on the facts available). I also want to note that BART’s response to the public backlash has at times been encouraging; the Post article noted the public discussion that BART has helped facilitate in thinking through its policy going forward.

But here is my attempt to apply the doctrine to the particular disruption here.

1. If the BART stations are nonpublic forums, then banning an entire medium of speech so broadly likely fails the test for nonpublic forums. See Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. and International Society for Krishna Consciousness, Inc. v. Lee. It fails the test because the disruption likely fails both prongs of the test (and need only fail one): it was both unreasonable and likely viewpoint based.

2. If the cell service at the BART station is seen as a forum itself (and not a medium of speech), then it is either a nonpublic forum or a designated public forum. If a nonpublic forum, the test above applies. If a designated public forum, then a higher test applies. A flat ban would have to be narrowly tailored to a compelling purpose–BART would likely fail to show narrow tailoring. If the disruption were not a ban (as it appears) but a content-neutral time, place, and manner restriction, then the government would need narrow tailoring to an important interest. Again, narrow tailoring would be difficult to show, though less difficult than for a ban.

3. Finally, BART officials have invoked Brandenburg v. Ohio, which sets a very high bar for suppressing speech, requiring   incitement to imminent lawlessness. It’s taught in law schools as a major bulwark against government silencing speech. If BART is claiming to meet this test, it’s like claiming its staff can run four-minute miles.

The ACLU of California also has an excellent analysis in this letter.

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