By Christopher Setz-Kelly
August 25, 2012
The Bay Area Rapid Transit (BART), a San Francisco-area commuter rail governmental agency created by the State of California, shut down cellular communications, including internet access on “smart phones” for over three hours on August 11, 2011 in several of their stations. The disruption was made, anticipating a demonstration to protest the shooting of a homeless man by a BART police officer on July 3, 2011. Protestors had previously gathered at a BART station in response to the shooting on July 13th, causing a temporary stoppage of service. Although the July protest was disruptive, with one man jumping on top of a stopped train, there were no reports of violence. The cellphone antenas within the stations are owned by BART, but are leased to wireless service providers including AT&T, Sprint, and Verizon. BART retains the ability to shut down service by powering down the antennas, and it did so in this instance without the prior authorization of the wireless providers.
Various civil liberties groups argued that the cellular shutdown by BART may be the first time in United States history that a government agency closed an entire communication system in anticipation of a threat. The proliferation of “smart phones,” with full Internet capability, now allow a user to access popular social networking websites such as Facebook and Twitter. Through these websites, a user can post information that can then be accessed by anyone else with a similar Internet-capable cellphone. The end result is that activists can now disseminate information on breaking- news stories, political events, or protests at a speed far greater than a traditional newspaper, television--or Internet journalists.
What does this all mean? These social networks, such as Facebook and Twitter, have become great public fora in terms of their accessibility, and efficiency, to those seeking to speak and mobilize for a political or social cause. Across the world, governments are struggling with how these new “public forums” should be monitored and regulated. For example, during the Arab Spring Revolution in Egypt, the government under then-President Honsi Mubarak acted drastically by shutting off Internet access to much of the country,in an effort to eliminate the flow of information coming from the Facebook and Twitter pages of the protestors. In the summer of 2011, riots in London prompted British Prime Minister David Cameron to consider a proposal to ban those suspected of inciting violence from using the social networking sites. The use of social media through cellular devices was also an instrumental tool of the Occupy protests.
The United States has a proud tradition of restricting the government from infringing on free speech. This right to free speech is codified in the First Amendment to the U.S. Constitution. Government actions like those of BART, which restrict communications between speakers and listeners directly, implicate First Amendment concerns whenever they occur. When the speech in question occurs on public property, like a train station, the level of First Amendment protection afforded to the speech is governed by the Supreme Court’s public forum doctrine. What level of protection the speech is afforded often hinges how the space where the speech occurred is classified, i.e., what type of forum it would be considered.
Some early analysts of the BART shutdown have focused on the physical space that speakers occupy when they access a social network, i.e. a train platform, when considering what kind of protection to which the speaker is entitled. I would argue that the wireless networks themselves, facilitating social networks such as Facebook and Twitter, are the forum that should be examined under the public forum doctrine. In Cornelius v. NAACP Legal Defense and Educ. Fund, Inc. (1985), the Supreme Court stated that the forum is defined not by the physical contours of the government property, but by the specific access that the plaintiff seeks. Thus, in Perry Educ. Ass’n v. Perry Local Educator’s Ass’n (1983), where a teacher’s union sought to gain access to a school’s internal mail system, the Court identified the mail system itself as the forum in issue and not the physical school property.
Therefore, in instances where government actors shut down wireless service to cellular phones, the forum at issue are the phone calls, text messages, and social networks that the users are attempting to access through their phones.
Further muddying the waters is the untenable status of the public forum doctrine as a whole. Perry established three different types of forum: the traditional public forum; the designated public forum; and non-public forum. The traditional public forum receives the highest level of First Amendment protection because these areas have been held in “trust for the use of the public” for the purposes of assembly and communication between citizens. These areas include streets, sidewalks, and public parks.Traditionally, the Supreme Court has drawn the boundaries of the public forum very narrowly, refusing to grant new fora this highest level of protection. Non-public fora receive very little protection, and nearly all speech restrictions, except those that discriminate on the basis of viewpoint, will be upheld. The trouble is with the middle forum, sometimes referred to as the “designated public forum” or “limited forum,” because the Supreme Court has been inconsistent in the protections afforded to speakers within its confines.
The social networks and other wireless capabilities shut down by BART and future government actions akin to it should fall within this middle forum. Because of their recent genesis, it is very unlikely that the Supreme Court would view wireless networks that enable users to access social media as “traditional” public fora. Additionally, it is clear that the government has opened these wireless fora to the public, so it can not now argue that they were not intended for public use. This leaves the middle forum.
Current doctrine leaves speech restrictions in the public forum prone to government abuse through the use of innovative litigating positions. Most often this happens in two ways. First, the government may declare that a designated public forum that was open to the public is now closed. This effectively allows state actors to block speakers with undesirable speech through a policy that has the appearance of a broad content-neutral restriction, but which is in fact viewpoint discrimination. Secondly, state actors under current doctrine have the ability to label a space a limited forum wherein only a certain class of speakers is permitted. By excluding the protestors from the class of speakers included in the limited forum, BART officials would be able to exclude their protestors’ viewpoint in this matter.
To prevent these roundabout viewpoint discriminations, the Supreme Court should eliminate the designated forum, leaving the limited forum as the sole middle forum. For protection from the abuses stemming from after the fact class drawing, the limited fora should be subject to an internal standard of review to determine if the class drawing had a rational basis.
Applying this new formulation of the limited forum, we can evaluate potential government justifications for the disruption of cellular communications in BART stations. Because the disruption excluded all potential speakers on BART’s network, BART officials could not claim that the disruption was committed to exclude only the protesting speakers i.e. those outside of the class of speakers that BART intended to use the network.
Additionally, because the restriction implicates those who must be within the group of speakers intended to access the limited forum, the disruption of service must survive strict scrutiny. Under this stringent standard of review the government must assert a compelling government interest and the restriction must be narrowly tailored to achieve that interest. BART’s stated goal in the disruption was to prevent wireless messages that could help protestors coordinate a demonstration which would create train delays and an imminent threat of unlawful and dangerous activity.
This restriction fails strict scrutiny on two fronts. First, the asserted government interest is not compelling, since a similar protest the previous month had yielded no violence and only a minor disruption in service. Thus, the threat to public safety does not seem immediate. Secondly, the “fit” of the restriction is not narrowly tailored. The disruption eliminated cellular service to everyone in the BART stations, not just the protestors. Therefore, it seems likely that anyone within the BART station would have a cognizable First Amendment claim against the state.
To protect core First Amendment principles, it is paramount that courts utilize a public forum doctrine that applies stringent judicial review when government actors disrupt our primary communication networks. Additionally, it is no longer sufficient that courts defer to government intrusions solely because the speech occurs in fora that seem new or novel or that lack a long tradition of public discourse