There's been a lot of coverage over BART's bizarre decision to shut down mobile phone service
in one of its stations to hinder some potential protestors. With the FCC investigating
, we've heard a number of folks say that there's no First Amendment violation here because there's "no right to mobile phone service." And while it's true that there's no right to mobile phone service, the law is pretty clear that there is a right to not have the government try to stifle a particular form of speech by shutting down infrastructure, solely targeted at that form of speech.
That is, the key issue isn't whether BART needed to keep its mobile phone service up all the time. If it goes down for maintenance, that's fine. But it can't turn it off if the decision is to try to block a particular type of speech. And that's exactly what BART clearly admitted to doing. Of course, it's not just the First Amendment at issue. There's also telecom law, and it appears BART violated that too.
Telecom lawyer/consumer rights advocate Harold Feld has a long and detailed explanation for why the shut down both violates telecom law and is also just a bad idea
in general. It's pretty detailed, pointing out the specific citations in telecom law that were violated and a series of relevant caselaw decisions. There's a lot in there, but here's a key citation that reads like it could apply almost directly to the BART situation:
In Pike v. Southern Bell Tel. &Telegraph Co., 81 So.2d 254 (Ala. 1955), Mr. Connor, in his capacity as Commissioner of Public Safety for the City of Birmingham, ordered Southern Bell to remove the telephone of one Louis Pike, described by Mr. Connor as “a negro” of “questionable character” alleged by Mr. Connor to be a “well-known lottery operator in the city” and to be using his phone for unspecified “illegal purposes.” Reviewing cases from other jurisdictions (including People v. Brophy), the Alabama Supreme Court found that the right of every citizen to use a phone was guaranteed by federal law and could not be deprived without due process. As the Court observed:
The present tendency and drift towards the Police State gives all free Americans pause. The unconstitutional and extra-judicial enlargement of coercive governmental power is a frightening and cancerous growth on our body politic. Once we assumed axiomatic that a citizen was presumed innocent until proved guilty. The tendency of governments to shift the burden of proof to citizens to prove their innocence is indefensible and intolerable.
We are not able to glean from the bare conclusions set up in the letter of the Commissioner, whether it is claimed that the “illegal” use of the telephone was by the appellant, her husband, or a total stranger. From aught that was alleged in the plea, except for the conclusion of the Commissioner, no “illegal” use of any type was made of this telephone by any one.
The notice alleged to have been received by the Telephone Company was couched in the terms of a direct order from the Commissioner of Public Safety. What is the source of Mr. Connor’s authority to issue such an order? We know of none. And we hold that none exists.
If we took a contrary view, it would naturally flow and follow that the telephone company would be justified in acting on the notice of any over-zealous law enforcement official who, without evidence, and on mere suspicion, is impressed with the bad character or occupation of a particular telephone subscriber. The letter from Commissioner Connor set up in the plea is no defense. It is the Telephone Company’s burden to show that the use being made of the telephone did, in fact, justify its removal.
These depredations of a subscriber’s legal right to telephone service constitute a denial of due process guaranteed by the Constitution of 1901, art. 1, § 6. The gratuitous and arbitrary action of a police official is no justification for an abridgment of this right. To hold that the Telephone Company is justified in discontinuing service by “order” of a police official would require judicial recognition of a police power which does not exist. The bald assertion of an executive officer, be he the Attorney General of the United States or a constable of some remote beat, cannot be accepted as a substitute for proof in the judicial process. No presumption arises as to the sufficiency of evidence based on a law enforcement officer’s conclusions.
Similarly, the BART's possession of “intelligence” that individuals may use their mobile phones to coordinate illegal activity does not confer “police power that does not exist.” BART must still go to the California agency with actual jurisdiction, the CPUC, and obtain a legal order authorizing the shut down of cellular service.