Marvin Ammori

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.

Some things are more tiring than others, obviously. I always found both packing and writing to be particularly exhausting. A recently article in the New York Times suggests why.

Last week, I packed up some boxes of my stuff. Like everyone, in packing, I noticed I had too many things. I had too many books, printouts, and notes. So I sifted through them for several hours, throwing them into two piles, of things I needed and those I didn’t. There were some close calls, like “Will I ever read this biography of Justice Brandeis? Should I keep my research and notes about innovation theory? Would I ever reread ‘True Blood and Philosophy’?” Actually, there were a lot of close calls. There were hundreds of little decisions about what to keep and what to dump. They weren’t high-stakes decisions–the books can be replaced, I could review sources instead of my notes, and True Blood is not Rawls.

But during the hours of packing, I felt almost completely depleted mentally. The packing was far more tiring than hoisting and moving heavy boxes, which required more physical energy. The mental component was surprisingly more exhausting. To me, this didn’t make sense.

The New York Times’s article on decision fatigue explained the mystery. Every word of the article is worth reading, but it has three main points: that making decisions is extremely tiring, that it saps our willpower, and that glucose reverses these effects.

I want to focus on the first point–that making decisions is tiring. Even deciding between vanilla and chocolate takes a toll. Making a decision is more tiring than contemplating or following through on the decision. Using the terminology of Caesar deciding to cross the Rubicon River to invade Rome, the author writes:

[C]rossing the Rubicon is more tiring than anything that happens on either bank — more mentally fatiguing than sitting on the Gaul side contemplating your options or marching on Rome once you’ve crossed.

This research suggests not only that the Grand Inquisitor may have been onto something (he thinks that many people don’t want to make decisions). It also helps explain why writing is tiring. Writing always feels so exhausting, far with its dozens of little decisions, from structure to syntax, from subject to sound. Even this post, like any post, requires dozens of little decisions with every conjunction and reference. But writing longer projects are even far more exhausting. It’s always easier to read and research and keep researching; the key decisions, and decision fatigue, come in writing, not in researching.

Maybe, to relax and do something less exhausting, I’ll read something… or lift and move heavy objects.

Richard Stallman has a must-read piece on the issue.

Yesterday, on a pleasant cross-country drive, I pulled over at a rest stop in Iowa and had the opportunity to be a guest on Lawyer 2 Lawyer discussing freedom of speech and new technology. The podcast is available here.

The other guest was Gene Policinski, the highly-regard Executive Director of the First Amendment Center at Vanderbilt University.

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.

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.

Continue reading →

The BART incident prompts a lot of legal questions because we are facing questions for the first time. A government agency silenced a communications network to disrupt a political protest critical of the government. It is an area of high free speech importance, but not an area of settled law or practice. And, as many have emphasized, however the US agencies decide this question will set the bar (or the “ceiling”) for other nations.

This post is about “kill switches” and what the legal limits should be to using them. A kill switch is a term for a government “switch” to shut off a communications network.

Continue reading →

I wrote yesterday about BART shutting the cell phone network in several of the most trafficked BART stations. I know BART was facing a new issue. But BART made the wrong decision, according to a lot of outraged people. I hope this public debate  leads BART and other agencies across the nation not to make the same mistake again, going forward. I hope we can learn from this and adopt a better practice–rather than shutting off technology to silence a protest criticizing a government agency.

I think this issue is a lens into several issues.

This post discusses one: government directing privately owned phone or Internet companies to silence speech. People sometimes call this censorship by proxy.

There are legal (and democratic) implications of censorship for proxy. Continue reading →

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.

Recent reports show that several small ISPs are redirecting search queries, primarily through a vendor named Paxfire. (See storie: here, here, and here.) That is, if you put a search in for certain brands–like Apple–rather than receive search results, you are redirected directly to the Apple page. (EFF describes this in the paragraph beginning “Under specific conditions” here.) The ISPs seem to deny authorizing Paxfire’s conduct.

The FCC adopted net neutrality rules in December. While the rule has exceptions, it definitely forbids ISPs from “blocking” websites. I think there’s a good argument that Paxfire is blocking the sites of search engines. Since Paxfire is the ISPs partner vendor, I think the ISPs would be responsible for Paxfire’s actions. Otherwise, ISPs could simply hire vendors to skirt the rules.