Cell shutdown pits safety vs. free speech

Published 9:12 am Friday, August 19, 2011

Column: Inside the First Amendment, by Gene Policinski

BART is the acronym for the Bay Area Rapid Transit system in the San Francisco area. It may also become a historical marker of sorts as we navigate the intersection, with its occasional collisions, of new technology, public safety and our First Amendment freedoms.

On Aug. 11, BART officials shut down cell-phone service in several of its underground stations, provoking a storm of protest.

Gene Policinski

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You heard about it via TV, radio, websites, newspapers, emails, tweets — even by cell phone. You heard about it in part because the First Amendment, those 45 words that lead off the 10 amendments known as the Bill of Rights, prevented government from blocking the reports.

The First Amendment says government cannot restrain our freedom of speech or of the press, or our right to assemble and to petition for changes in government policy or practices. It also guarantees religious freedom.

But by experience we know that for many hard-and-fast rules in life — even in constitutional law — there’s an “except for.” Historically, some exceptions to our full protection by the First Amendment have been the “time, place and manner” considerations concerning when and where we speak. What’s OK in the public square at high noon probably isn’t OK at 3 a.m. under someone’s bedroom window. There are also national-security exceptions. And some kinds of speech, such as true threats and slander, simply don’t qualify for protection.

What the BART controversy has done is ignite a national discussion over the simmering question of exactly where in our new cyber-world does the “except for” begin with regard to speech and assembly.

BART officials said they had information of planned protests and feared cell phones would be used to organize so-called “flash mob” demonstrations on its subway platforms, endangering protesters and others. A month earlier, protests had occurred at some subway stops against a July 3 BART police shooting of a homeless man with a knife. At one station a demonstrator climbed atop a transit car.

In legal terms, BART’s position is that “imminent danger” from what it feared would be a lawless mob outweighed free-speech concerns for a relatively short period of time, in specific areas, namely a few subway platforms.

Critics of BART’s shutdown say there’s no provision in law for restricting constitutional freedoms under the mere apprehension that something bad might happen. Nationwide, First Amendment advocates also fear that other government officials will pick up on BART’s tactic, shutting down communication among organizers of political protests in other instances where officials fear violence or other danger to the public.

In one sense, there’s nothing new about this collision of public safety and personal freedom. As a nation we have endured, debated and generally discarded tactics ranging from jailing journalists under a 1798 Sedition Act, to President Lincoln’s moves to silence editors who disagreed with his Civil War policy, to arresting socialists and others during the “Red Scare” of the early 1920s, to the McCarthy communist witch hunts of the 1950s. In all of those examples, there was a vague or generalized fear of a threat to the nation’s safety. In hindsight the nation generally has judged all to be excessive, intrusive and illegal.

A common argument in the BART debate is the oft-cited distinction that there is no First Amendment protection for someone who falsely shouts “Fire!” in a crowded theater, because the likelihood of panic overrides free-speech concerns.

What the BART incident does, at a basic level, is challenge that adage with a new question: Does a report that someone, sometime might falsely shout “Fire!” justify taping over the mouths of all of the theatergoers as they enter … if only in that place, on that night, and only during that play?

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: www.firstamendmentcenter.org. Email: gpolicinski@fac.org.