BART starts a free speech firestorm
By Rosalea Barker
If you accept that social media are more of a plaza (where people meet and exchange views and information) than a highway (where views and information are driven at you), then claims that shutting them off temporarily is akin to a temporary road closure make no sense. That is the comparison that Conservative MP Louise Mensch made in support of PM David Cameron’s plan to shut down social networking services during the recent UK riots. Even the local police thought that idea was daft.
Here in the US, the current advertising campaign by wireless carrier Verizon has the tagline “Rule the Air!” and rival AT&T’s ads declare “In the network, anything is possible”. Little wonder then that ordinary people, reliant on email, texting, and social media like Facebook and Twitter to keep in touch with each other, see access to those communication tools as something THEY, not corporations or government entities, are in control of. To be deprived of those tools is to be deprived of a basic civil and political right.
In the States, the first recourse is to the Constitution, specifically 14 words contained in the First Amendment: “Congress shall make no law…abridging the freedom of speech, or of the press”. State constitutions also contain similar wording, and the principle of free speech applies in a general sense—not just to laws that Congress or states make.
So when the Bay Area Rapid Transit police cut off cellphone service on the platforms of four underground San Francisco BART stations on August 11 in order to stop protesters organizing a demonstration, the focus quickly shifted from what the initial protest was about to questions of free speech and First Amendment rights.
Lest we forget
Before getting to the free speech issue, let’s remember what the initial protests were about. On July 3, BART police shot and killed a drunken homeless man on the platform of SF’s Civic Center station after he threw a knife at them. This wasn’t the first incident of BART officers shooting to kill—back in January 2009, an unarmed man, face down on the ground and handcuffed, was shot in the back by a BART officer standing over him on the platform of Oakland’s Fruitvale station. (I wrote my thoughts about that incident here.)
The BART Board of Directors—democratically elected by voters like myself—seemingly learned nothing from that first deadly shooting. They never demanded the resignation of the Police Chief, who was left to collect a big, fat pension when he eventually retired—and they have been the target of numerous protests about their actions ever since, with the lead role taken by No Justice No BART, which wants the police force disbanded. To his credit, NJNB’s spokesperson—“Krystof” (pictured left) as he is chyroned on TV news reports—keeps the message of the original protests to the forefront, despite the tangent that the cellphone service shutdown has led the media off on. Here is what he said at a recent BART board meeting, and here are his local beginnings as an anti-war-on-terrorism protestor immediately post-9/11. (See the last section about Christopher Cantor.)
The colonial beginnings of Free Speech
On November 2, 1734, a New York printer by the name of John Peter Zenger was arrested and thrown in jail. He had been publishing a popular twice-weekly journal that was critical of the colony’s governor, who would brook no opposition. When the resultant libel case finally came to trial by jury at the end of July the next year, Zenger found himself being defended by one of the greatest lawyers of the day, Alexander Hamilton. A Brief Narrative of the Case and Trial of John Peter Zenger, Printer of the New York Weekly Journal, a 40-page booklet that was published several times in London, Boston, and Philadelphia, contains some of Hamilton’s oratory, and was influential in persuading colonists to rebel against Britain, and the nascent States to demand a Bill of Rights that included the right to free speech and a free press.
The following short extract is as apposite today around the globe as it was in 18th Century New York:
“I pray, what redress is to be expected for an honest man, who makes his complaint against a governor, to an assembly who may properly enough be said to be made by the same governor against whom the complaint is made? The thing answers itself. No, it is natural, it is a privilege, I will go farther, it is a right which all free men claim, and are entitled to complain when they are hurt; they have a right publicly to remonstrate the abuses of power, in the strongest terms, to put their neighbors upon their guard, against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it, as one of the greatest blessings heaven can bestow.”
Over the years, the US Supreme Court has continually refined what is considered to be “protected speech”—most notably, where “public safety” or “national security” is involved, First Amendment protections aren’t applied. Other SCOTUS decisions have revolved around whether interference with free speech was content-neutral, and whether the “time, manner and place” of the exercise of FA rights is inappropriate.
Jesse Choper, listed as a faculty expert on constitutional law on UC Berkeley’s website, gave an explanation of why he thought the BART telecommunication shutdown was not breaching free speech principles when he was interviewed by Warren Olney on To the Point, a Public Radio International program broadcast on August 18, and available for download here. (The discussion begins about 8 minutes in.)
“There is no exercise of First Amendment rights [involved in the protests on the BART platforms],” said Choper. “The devil is in the details, and in the facts. I think it’s wrong to compare what happened here as what happened in the Arab Spring. … The rule is pretty simple. It’s got to be a content-neutral regulation. That’s not self-defining. First of all, they [BART] didn’t have a rule” about when cutting off telecommunications would be appropriate. “They will after this—there will be a general rule that talks about interference with the safety of passengers on platforms. The BART board will get their lawyers to draft up a rule that will protect them.”
Choper continued later, “If people want to protest against the killing by the BART officers, they have every First Amendment right to do so. Is it important that they do it at the BART station? Well, if they think it is, they can parade peacefully and without interfering with traffic all day long outside, right outside the entrance to the BART station. This is not a restriction of speech; it’s a regulation of time, place and manner.”
One of the other guests on the show, Judith Donath (pictured left), who is Faculty Fellow at Harvard University’s Berkman Center for Internet & Society, expressed the opinion that the technology of today’s world means that:
“We’ll be thinking about different types of public spaces that are purely virtual, which may change some of our constitutional understanding of when we can shut down a network if we say that the things we want to protect about the ability to speak freely and to hold a rally in a public space—what about if those spaces increasingly become online forums? What does that mean about the importance to the access of technology? One of the things we can see already is that our understanding of what is traditional public and private space is a little iffy. We really don’t quite know what a train platform is. It’s going to be changing a lot as technology both spreads our physical public space into the virtual world through cameras, etc, and the virtual world increasingly becomes our gathering spaces.”
Meanwhile, the protests about BART’s handling of the police shootings—and now, also, their handling of access to commercial telecoms networks on their platforms—continue every week. Commuters are variously in support of the protestors, or mightily pissed off with them because of the mess it makes of their evening commute. Some have adjusted by going in to work early on the days that protests are planned so they can leave early, before the stations might potentially be shut down.