Inhibiting Speech by Throwing a Switch

Mark Wilson

San Francisco’s Bay Area Rapid Transit (BART) last week earned the ire of the hacker group Anonymouswhen it shut off cell phone service on train platforms— in anticipation of a protest over BART officers’ fatal shooting of a knife-wielding man in the Civic Center station. That protest never happened, but the cell phone shutdown sparked another protest, which did happen, on Monday. The cell phone shutdown prompted the ACLU of Northern California to send a letter to BART Police Chief Kenton W. Rainey expressing its concern about BART’s actions. The FCC is also investigating.

The propriety of shutting down cell phone service in order to prevent or water down protests is a hot topic. In January, the Egyptian government shut down not only cell phone service, but also Internet access in Egypt, in order to prevent protests. British Prime Minister David Cameron is also calling for increased power to regulate cell phone service in the wake of last week’s London riots.

The BART incident is unfortunately not a terrific example of a prior restraint. The shutdown affected only paid areas of downtown San Francisco stations, not the lobby or above-ground public areas. (In In re Hoffman (1967), the California Supreme Court said that the public area of a railroad station is a traditional public forum.) Comparisons to Mubarak are superficial at best, and at worst, they diminish the free speech crackdowns Egyptian protestors endured in January. The most persuasive argument against BART’s actions is that a blanket cell phone shutdown prevented emergency calls. What BART did was, to use a legal term, “a crappy thing to do,” but it likely was not a violation of the First Amendment.

Nevertheless, speech crackdowns during protests are things that we in the United States think are limited to other places where speech is less valued than it is here. BART’s cell phone shutdown was limited to an internal network that BART owned; there was nothing approaching a Fifth Amendment taking in the sense that a government entity shut down a private company’s network. But it’s not hard to imagine that police departments would ask for a cell phone shutdown throughout a large part of a city, and it’s not hard to imagine that the service providers would willingly assent. Phone companies have willingly done much worse in the recent past—e.g., AT&T, Verizon, and others consenting to National Security Agency spyingon their networks.

Safety is always the reason cited for suppressing speech, but BART would not have shut down cell phone service if there were a massive, unwieldy pro-BART protest. By shutting down cell service on the platform, BART’s clear intention was to prevent protestors from communicating, and in so doing, to prevent the protest from being effective. BART’s actions, in isolation, don’t amount to a whole lot, but in conjunction with other actions around the world, they represent a disturbing trend toward neutering effective protest with the flick of a switch.

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