COMMENTARY | The current First Amendment battle unfolding in San Francisco over BART, the city’s public transportation system, underscores the power of cell phones. They act as a gateway to the rights guaranteed by the Constitution, particularly those of speech, peaceable assembly and redress of the government for grievances.
In an attempt to quash an anticipated protest in response to earlier shootings by BART officers, BART officials Thursday turned off the wireless signals the subway system provides for riders. The original protest never happened, but CNN reports BART officials were serially opening and closing stations Monday, apparently to limit protests of the shootings and communications shutdown. BART cited safety concerns for the station closings.
Contrary to popular understanding of the First Amendment, all speech is not free. The government can and does put limits on speech in ways that are constitutionally permissible. For example, commercial speech is regulated: A business cannot make false claims and say it has the right to do so under the First Amendment.
But when the government creates or designates a place specifically for speech — like the public square — it cannot suddenly take action to prevent speech.
Limiting speech in the public square is precisely what BART did.
According to CNN, Linton Johnson, BART spokesperson, said “They made us choose between people’s ability to use their mobile phones (and) their constitutional right to get from point A to point B.” Aside from creating a non-existent right that could spur civil rights lawsuits over travel delays, the statement is misguided. Speech on those phones is what the Constitution protects.
BART, a government entity, provided a platform for speech, then revoked it to prevent unwanted expression. Public safety might prove a real concern for people physically protesting, as an unusually large number of bodies in the confined space of a subway station could pose risks. Safety does not, however, justify closing down the virtual public square of the wireless network.
After the protests, BART released a policy statement regarding the types of speech permitted on its networks. Not surprisingly, the speech now prohibited by BART includes that used to organize protests. While that notice may or may not hold up in regard to future protests, it cannot work retroactively.
As the inevitable litigation proceeds, this case will be one to watch. Cell phones allow every individual a portal to a mobile world of information, a portal which the government can sever with apparent great ease. The framers of the Constitution may not have anticipated the technology, but they certainly anticipated the instant and resounding silence, and drafted the First Amendment to prevent it.