So, we’ve got the right to assembly, but only if we use a fucking megaphone to get the assembly going? I’m going to spend a lot of money on guns and bullets at a gun show this weekend.

It goes beyond turning off the cell phone capabilities. A BART official was quoted as saying:

“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.”

I think talking, and holding signs peaceably are forms of “expressive activities” which they have banned.

As someone who has won Pro Se First Amendment lawsuits against state agencies where I live, I can speak with some confidence when I say that the activities of BART in shutting down all cell service in terminal areas because of a possible protest would likely be held to be unlawful in a lawsuit, for a number of reasons.

First, let’s get it clear that BART is a government agency, meaning they are limited in what they can do by the U.S. and California Constitutions.

As someone already pointed out, the paid area of a terminal is not a “traditional public forum” (think a park or sidewalk), so state officials have considerably more leeway in ensuring that area is used for its intended purpose. But the Constitution doesn’t evaporate simply because the government operates a paid service. When dealing with expressive activities in a non-traditional forum, they have to be “reasonable” in their policies and actions. From what’s been publicly discussed so far, BART officials had little to no knowledge of the form or scale of possible protests or any danger they presented. That hurts their chances of successfully claiming the response of shutting off all cell phone service to EVERYONE IN THE PAID AREA was a “reasonable” response. This wasn’t a situation where they shut down cell service in a small area to stop an ongoing riot; this was a POTENTIAL protest and they wanted to stop protesters from gathering AT ALL. Their idiotic attempt to impose a “no expressive activities at all” rule will do even more damage to them. No court applying the law properly would find that to be “reasonable” and it would be evidence that the people involved in this fiasco disregarded (or had little understanding of) the First Amendment and the limits on their authority.

There are a lot of other constitutional issues, too. Due Process-wise, BART deprived hundreds (at least) of innocent people of access to services lawfully purchased from private companies, reducing the value of those services (deprivation of property without Due Process). There are also contract problems: Riders paid fares expecting cell phone service in the paid areas, but didn’t receive what they paid for. With both of these issues, there is no comparison between what BART did and normal loss of signal. BART has built a network of cell signal repeaters and people rely on it for a wide variety of constitutionally-protected activities. Network failures are one thing; intentional disruption of service by government employees is quite another.

There also are probably some statutory issues. There are various laws on the books prohibiting interfering with communication services, and no sane individual would think that shutting off a signal is NOT interfering with service. It’s possible that BART violated one or more of these laws. (I don’t know though, it’s not an area I’m familiar with.)

Finally, there are plenty of sound policy reasons why this type of thing should result in severe penalties. The biggest is that approving of it could set a dangerous precedent. It’s no great leap from shutting down transceivers you control to asking a private company to do the same. If this happened in a major metropolitan area it would have far greater effects on the public. Fortunately there was no emergency in the affected area, because it had no 911 service thanks to BART. (Has BART ever heard of unintended consequences?) There’s also the need to prevent the government from getting an additional power to deter speech: If protesters know that they will anger huge groups of people by speaking out because the government will shut off EVERYONE’s service to shut them up, they will be deterred from speaking out; this “chilling effect” itself would be a violation of the First Amendment.

Personally, I wish I were there because I’d be at the courthouse door as soon as I finished drafting my papers. Nobody will win a lot of money from a lawsuit over this, but a ruling that it was unconstitutional is worth much much more. I really hope someone challenges this, because this type of government conduct is a deadly threat to liberty as we grow more connected every day. I’m hopeful that because this happened in famously-liberal California, someone will have the courage to challenge it.

There are a number of issues here. How much info did BART have about the protests and the people they thought might get involved? How many people were going to show up? At what level was this decision made and did they consult with BART attorneys? Did they consult with the phone companies? How did they address the possibility for 911 emergencies? What alternatives were there? Is there an official policy on potentially-dangerous situations in general, and protected protests specifically? Have there been other protests they’ve allowed? What interest did BART have in suppressing this particular protest? What are the broader policy issues involved in allowing or forbidding this practice?

All these issues, and many more, come into play in deciding whether or not BART acted constitutionally. While it is presumed that employees of the government intend to act within the limits of their authority, the proper place to decide whether or not they’ve STAYED within the limits of their authority is a court.