Questions surround San Francisco cell phone shutdown

SAN FRANCISCO (AP) - An illegal, Orwellian violation of free-speech rights? Or just a smart tactic to protect train passengers' safety from rowdy would-be demonstrators during a busy evening commute?

The question resonated Saturday in San Francisco and beyond as details emerged of Bay Area Rapid Transit officials' decision to cut off underground cell phone service for a few hours at some stations Thursday. Commuters at stations from downtown to the city's main airport were affected as BART officials sought to tactically thwart a planned protest over the recent fatal shooting of a 45-year-old man by transit police.

Two days later, the move had civil rights and legal experts questioning the agency's move, and drew backlash from one transit board member who was taken aback by the decision.

"I'm just shocked that they didn't think about the implications of this. We really don't have the right to be this type of censor," said Lynette Sweet, who serves on BART board. "In my opinion, we've let the actions of a few people affect everybody. And that's not fair."

Sweet said BART board members were told by the agency of its decision during the closed portion of its meeting Thursday afternoon, less than three hours before the protest was scheduled to start.

"It was almost like an after-thought," Sweet told The Associated Press. "This is a land of free speech and for us to think we can do that shows we've grown well beyond the business of what we're supposed to be doing and that's providing transportation. Not censorship."

But was it truly censorship? Channels of communication were cut off for everyone at a given station, not just those whose speech the transit authority was trying to impede. And beyond that, there are legal nuances to consider, including whether under the law BART is considered a government agency - a key component in deciding censorship.

These situations are largely new ones, of course. A couple of decades ago, during the fax-machine and pay-phone era, the notion of people organizing mass gatherings in real time on wireless devices would have been fantasy.

BART Deputy Police Chief Benson Fairow said that, for his agency, the issue boiled down simply to one of public safety.

"It wasn't a decision made lightly. This wasn't about free speech. It was about safety," Fairow told KTVU-TV on Friday.

Aaron Caplan, a professor at Loyola Law School in Los Angeles who specializes in free-speech issues, was equally critical, saying BART clearly violated the rights of demonstrators and other passengers.

"We can arrest and prosecute people for the crimes they commit," he said. "You are not allowed to shut down people's cell phones and prevent them from speaking because you think they might commit a crime in the future."

Michael Risher, the American Civil Liberty Union's Northern California staff attorney echoed the sentiment in a blog: "The government shouldn't be in the business of cutting off the free flow of information. Shutting down access to mobile phones is the wrong response to political protests, whether it's halfway around the world or right here in San Francisco."

The ACLU already has a scheduled meeting with BART's police chief on Monday about other issues and Thursday's incident will added to the agenda, spokeswoman Rebecca Farmer said.

But others said that while the phone shutdown was worth examining, it may not have impinged on First Amendment rights. Gene Policinski, executive director of the First Amendment Center, a nonprofit educational organization, said freedom of expression can be limited in very narrow circumstances if there is an immediate threat to public safety.

"An agency like BART has to be held to a very high standard," he said. "First of all, it has to be an immediate threat, not just the mere supposition that there might be one. And I think the response has to be what a court would consider reasonable, so it has to be the minimum amount of restraint on free expression."

He said if BART's actions are challenged, a court may look more favorably on what it did if expression was limited on a narrow basis for a specific area and time frame, instead of "just indiscriminately closing down cell phone service throughout the system or for a broad area."

University of Michigan law professor Len Niehoff, who specializes in First Amendment and media law issues, found the BART actions troublesome for a few reasons.

He said the First Amendment generally doesn't allow the government to restrict free speech because somebody might do something illegal or to prohibit conversations based on their subject matter. He said the BART actions have been portrayed as an effort to prevent a protest that would have violated the law, but there was no guarantee that would have happened.

"What it really did is it prevented people from talking, discussing ... and mobilizing in any form, peaceful or unpeaceful, lawful or unlawful," he said. "That is, constitutionally, very problematic."

The government does have the right to break up a demonstration if it forms in an area where protests are prohibited and poses a risk to public safety, Niehoff said. But it should not prohibit free speech to prevent the possibility of a protest happening.

"The idea that we're going to keep people from talking about what they might or might not do, based on the idea that they might all agree to violate the law, is positively Orwellian," he said.

BART officials maintained the cellphone disruptions were legal. It said in a statement that it's illegal to demonstrate on the platform or aboard the trains, and that it has set aside special areas for demonstrations.

"We had a commute that was safe and without disruption," BART spokesman Jim Allison noted.