Bay Area Rapid Transit Actions of August 11, 2011: How Emerging Digital Technologies Intersect With First Amendment Rights
| Jurisdiction | United States,Federal,California |
| Publication year | 2013 |
| Citation | Vol. 29 No. 3 |
Bay Area Rapid Transit Actions of August 11, 2011: How Emerging Digital Technologies intersect with First Amendment Rights
Erika Pitzel
Recently, people have used digital technologies to organize actions aimed at their governments, and governments have countered by using technology to address these popular movements. The Chinese government has blocked access to social media1 and the use of other personal communication devices to stop protest movements.2 When
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Iranian protestors used Twitter3 and other social media to mobilize and plan rallies protesting the results of the Iranian national presidential election in 2009, Iran's government responded by blocking cell phone service, disrupting internet satellite service, and filtering websites.4 In February 2011, protestors in Iran, Bahrain, and Yemen also used social media to arrange "solidarity demonstrations," and again, governments responded by blocking these sites.5 In 2011, Egypt and Syria also blocked access to cell phones and other communication technologies to disrupt protests.6 In August 2011, even Great Britain contemplated restricting social media to disrupt rioting that was coordinated using these emerging communication methods.7
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In the summer of 2011, violent flash mobs8 developed in Chicago, Philadelphia, Cleveland, and Milwaukee and organized largely through the use of Twitter and Facebook.9 Authorities in each city responded by instituting curfews but did not block access to social media or the use of mobile communication devices.10 However, when San Francisco Bay Area Rapid Transit System (BART) officials learned of a planned protest at its stations set for the evening of August 11, 2011, they decided to shut down cellular and WiFi Rail11 service to disrupt the protest.12 This event was significant: It marked the first time a government entity in the United States disrupted a
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political protest by blocking access to cell service—a tool usually associated with nations without free-speech protections.13
Digital communication technology14 is an emerging mode of speech that is eclipsing traditional printing press media.15 This new "digital speech" is widespread, almost instantaneous, and mobile— quickly spreading ideas to a wide audience,16 and the emergence of this new mode of speech has the potential to impact the First Amendment landscape.17 Although digital speech has provided new means, locations, and tools for those who wish to express themselves, the way freedom of speech applies to this emerging technology has yet to be determined.
This Note examines whether BART officials violated the First Amendment by shutting down mobile and WiFi Rail services to disrupt a planned protest on August 11, 2011. Part I of this Note reviews the events leading up to the planned protest, details the actions of the protestors and BART officials on August 11, 2011, and discusses the state of First Amendment law as it relates to digital speech.18 Part II analyzes the Supreme Court's relevant freedom of speech precedents and applies them to the events of August 11, 2011,
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to determine if BART's actions were constitutional.19 In so doing, Part II examines whether the protestors' actions were a protected class of speech, whether BART's actions amounted to content discrimination, and whether the BART stations could be considered public forums.20 Part III asserts that current Supreme Court case law is inadequate to address this and similar situations, suggests that the Court evaluate digital speech based on its unique attributes, and proposes alternate and proactive means of potential protections for digital speech should constitutional protections fall short.21
A. BART Police Actions Spur July 11, 2011 Demonstration
On July 3, 2011, BART police officers allegedly shot and killed a transient, Charles B. Hill, who BART officials claim was armed with a knife and bottle.22 This shooting was the latest in a series of actions
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by BART police that prompted action by the protest group "No Justice No BART," whose self-described mission is to raise awareness of what it sees as police brutality by BART officials and to ultimately disband that police force.23 No Justice No BART has organized several demonstrations at BART stations since 200924 and has described its protest strategy:
[T]o exercise our freedom of assembly in such a way as to disrupt the "business as usual" status quo, and to continue organizing such events until our demands [are] met. We will maintain lines of communication with riders and the media, to let people know of the potential for disruptions in service during upcoming demonstrations, to explain our demands, and to encourage people to join us in pressuring the BART board and elected officials.25
On July 11, 2011, approximately one hundred demonstrators organized by No Justice No BART protested at three BART stations.26 The protest was initially quiet and calm, with some protestors handing out flyers describing their group and mission, but the protest grew loud when some of the protestors "began screaming
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'cops, pigs, murderers' and 'no justice, no peace, disband the BART police,' [while standing] on the platform."27 Some protestors then blocked train doors, and one man climbed on top of a train.28 BART closed the station within thirty minutes.29 Some protestors then rode trains to two other stations forcing BART officials to close those stations as well.30 However, the demonstrations did not result in any injuries or arrests.31
A No Justice No BART organizer viewed the protest as a success since it was "disruptive but peaceful."32 The event, which occurred during the evening rush hour, affected transit schedules for three hours;33 however, the average train delay during the protest was seven minutes.34 BART closed the Civic Center station for thirty minutes and locked turnstiles at the Powell Street station for twenty minutes.35 BART officials responded to the July 11 protest by increasing the visible police presence at the stations, temporarily closing affected stations, and moving crowds away from the trains.36 BART officials, irritated by the system-wide delays and safety hazards caused by protesters on crowded platforms near high-speed trains, stated that there would be "zero tolerance" for these kinds of protests in the future.37
B. August 11, 2011 Protest
On August 11, 2011, No Justice No BART again planned to protest at BART stations during the evening commute.38 According to official statements, BART personnel learned of the planned protest
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on the organizer's website, which publicly posted the organization's plans to hold a protest at one of the stations beginning at 4:30 p.m.39 The website stated the organizers planned to use cell phones once on BART property to further coordinate the protest.40 In response, BART officials decided to cut cell phone and WiFi Rail service at the potentially affected subway stations just prior to the time of the planned protest.41 BART officially stated that it used these tactics to "ensure the safety of everyone on the platform."42 However, internal BART communications suggest that BART officials' decision to shut down cell service was hastily planned with little discussion of the consequences.43 No Justice No BART also questioned BART's motives, suggesting BART's tactics were not aimed at safety but at disrupting their protest message.44 BART's strategy was successful, and the protest never materialized.45 BART restored cell service by 7:00 p.m.46
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BART accomplished the cell phone shutdown by cutting power to the station's underground nodes that relay cell service to above ground transmitters.47 The subterranean platform levels and some of the concourse levels of the affected stations lost cell service.48 BART owns the underground nodes and rents them to various cellular providers.49 BART notified the cell providers prior to cutting the power.50
C. Jurisdiction And Governing Laws
BART is a California "public agency" that was chartered by the California legislature in 1957 and is governed by California's Public Utility Code.51 BART has an anti-demonstration policy: "No person
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shall conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas of BART stations, including BART cars and trains and BART station platforms."52 However, "expressive activities" are allowed in certain designated areas.53 California regulations also allow the transit authority to impose a penalty for "[w]illfully disturbing others on or in a system facility or vehicle by engaging in boisterous or unruly behavior . . . ; [and] willfully blocking the free movement of another person in a system facility or vehicle."54 Even if BART officials complied with BART and state policies and regulations when shutting down cell service, their actions still may have resulted in a violation of First Amendment rights.
D. First Amendment History
The First Amendment provides for "freedom of speech."55 In its decisions during the past century, the Supreme Court has attempted to delineate the limits of free speech56 but, in the process, has created
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"an endless maze" of tests and definitions to assess what constitutes protected speech.57 Although First Amendment doctrine expanded in the twentieth century,58 there is little Supreme Court case law regarding free speech rights relating to digital communications and no precedent regarding termination of cell service to disrupt the organization of a protest.59 Communication methods have evolved over time from the printing press to the digital age, but First Amendment jurisprudence has not kept pace. Therefore, the events of August 11, 2011 must be analyzed under existing First...
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