The police for San Francisco’s subway system, the Bay Area Rapid Transit System, received information alleging that patrons were planning to use mobile devices and cell phones to organize a protest on August 11. The BART police acted on this information by blocking cell phone service in certain subway stations for three hours to quell the planned demonstration.
In doing so, BART violated not one, but two rights under the First Amendment, namely, the right to free speech and the right to assembly. It should have been obvious to BART that governmental agencies are not allowed to suppress speech due to a belief that a lawful, peaceful protest is about to be held. It appears that part of BART’s defense was to point out that it was not required to install underground antennas for cell phone service in the first place. However, this argument does not hold water. Once the antennas are installed, BART is not allowed to limit their functionality to favored communications. This point was well made in a case where a city gave billboards with commercial messages preference over billboards with non-commercial messages. The court in that case stated:

Insofar as the city tolerates billboards at all, it cannot choose to
limit their content to commercial messages; the city may not
conclude that the communication of commercial information
concerning goods and services connected with a particular site
is of greater value than the communication of noncommercial
messages.

There appears to be debate over whether BART accomplished the cell phone blockage by using a cell phone jammer or turning off the power to the underground antennas. BART claims it cut the power to the antennas, but it also attempted to initially place the blame for the incident on the cell phone carriers. If BART did use jammers, it would have violated federal law, as the federal prohibition on jammers is so great that not even state prisons are allowed to utilize them.
Finally, BART’s tactic backfired, as while no protest materialized on August 11, there was a protest concerning the cell phone blockage itself on August 15, during which no cell phones were disrupted. The hacker group Anonymous also published the contact information of more than 2000 BART customers.

This entry was posted on Sunday, August 28th, 2011 at 5:01 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

One Response to “BART and the First Amendment”

  1. carrie on August 28th, 2011 at 5:03 pm

    very well written and very educational

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