Aug. 16, 2011 — -- San Francisco's BART -- the Bay Area Rapid Transit system -- has clashed with demonstrators again over a First Amendment issue: whether it can legally cut off cellphone service on subway platforms. The latest confrontation was late Monday.
The issue broke open after July 3, when transit police shot and killed a homeless man, Charles Blair Hill on a train platform. Officers said Hill came at them with a knife, but public outrage over the shooting sparked protests. Demonstrators stopped trains, in some cases climbing on top -- and organized their protests by smartphone.
The hacking group Anonymous got involved, crashing a BART website and urging people to gather at subway stops.
BART responded last Thursday by turning off cellular service to four underground San Francisco train stations. It said the outage lasted for three hours and only affected subway platforms where paying customers got on and off trains.
Monday night, when demonstrators crowded around stations again, BART closed the stations but did not shut down cell transmissions. That was not the end of the issue, though. In an email to ABC News today, BART spokesman James K. Allison said, "This, however, does not preclude the future use of this tactic should it be deemed necessary to protect our customers from the potential of dangerous conditions."
One protester, Angel Nora, said, "When they're going to start clamping down on people's free speech and people's voice, then that's when I get offended and realize I need to come out and show my support for American free speech."
A Right? Or a Convenience?
Legal scholars said the transit system's decision to shut off cellular service raises tremendous First Amendment issues that may not be addressed adequately by existing laws -- a question of how cellphone service should be regarded. Is it a means of free speech, like a printing press or a bull horn? Or, in a subway station, is it a convenience provided by BART -- a service it has a right to cut off?
The Federal Communications Commission said it was investigating BART's right to cut off cellular service. The ACLU of Northern California held off on filing suit against BART, but sent an angry letter to the FCC, calling BART the "first known government agency in the United States to block cell service in order to disrupt a political protest."
"I think it's very dangerous territory," said Gene Policinski, executive director of the First Amendment Center at Vanderbilt University. "The right to protest is as American as apple pie."
"At sporting events, it's not uncommon to limit the number of people allowed on a train platform," he said. "But in this case, do they meet the very high test of imminent danger in a specific area?"
In a statement Monday, BART management said, "BART accommodates expressive activities that are constitutionally protected by the First Amendment to the United States Constitution and the Liberty of Speech Clause of the California Constitution (expressive activity), and has made available certain areas of its property for expressive activity." But it said there are limits.
"Paid areas of BART stations are reserved for ticketed passengers who are boarding, exiting or waiting for BART cars and trains, or for authorized BART personnel. No person 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."
A BART official, asking not to be quoted by name, said the shutoff was intentionally limited, and someone with an urgent call to make could simply walk up to street level.
But there was disagreement within BART itself. By cutting off demonstrators' ability to send a text message starting a protest, did it violate the rights of bystanders who might be using their cellphones simply to call family or friends?
"I'm just shocked that they didn't think about the implications of this," said Lynette Sweet, who serves on BART's board of directors. "We really don't have the right to be this type of censor. In my opinion, we've let the actions of a few people affect everybody. And that's not fair."
ABC station KGO-TV contributed to this story. Additional information from The Associated Press.