No Decision from BART Board on Phone Shut Down, Board Seems to Lean Against, 8/24/11: audio

(audio 2:36:16)

Public comment begins at 18:15 into the meeting and the Board takes up the matter at 1:20:35.

(6-page PDF)

As requested by the ACLU, BART made copies of these letters available at the special meeting today. Michael Risher, author/signatory on August 22nd letter, spoke at the special meeting.



Below is an imperfect OCR text rendering of 8/22/11 letter:


August 22, 2011
Via Email and Fax
Board of Directors
San Francisco Bay Area Rapid Transit District
300 Lakeside Drive, P. O. Box 12688,
Oakland, CA 94604 -2688
Fax: 510-464-6011
boardofdirectors [at] bart.gov

Re: August 24,2011 special board meeting!

Dear Directors:

We understand that you will be meeting on August 24,2011 to discuss BART's shutting
down of cell phone service in advance of a demonstration that was planned for earlier this
month. We are writing to urge you to adopt a policy that ensures that BART does not shut down
cell phone service on its trains or platforms except in the most extraordinary circumstances.' and
certainly not to interfere with demonstrations or other expressive activities. Our letter of August
12 sets forth many of the legal principles involved; a copy of that letter, with a correction
regarding whether the man shot on in the Civic Center station was armed;' is attached. In this
letter we wish to ensure that our initial letter becomes part of the record and to further discuss
some of the principles of free speech and assembly that are involved in this matter.
The people of our state have the right to speak freely as Americans and as Californians.
Our supreme court has long held that cutting-off telephone service can infringe upon the rights
guaranteed by the First Amendment, reasoning that because "the rights of free speech and press
are worthless without an effective means of expression, the guarantee extends both to the content

I We ask that this letter be made part of the record of the August 24,2011 special board meeting.
2 A situation involving a cell-phone triggered bomb would be a prototypical example of such an extraordinary
circumstance, as would a hostage situation where it is necessary to prevent the hostage takers from communicating
with their accomplices . See Pub .Util.Code § 7907 (allowing cutting of phone lines in hostage situation).
3 The August 12 letter stated that Mr. Hill was " unarmed"; we have redacted that characterization from the attached
letter and from the copy of it posted on our website.



of the communication and the means employe d for its dissemination .?" Our state constitution is
eve n more protecti ve of free expression than is the First Amendment. 5 Thus , the California
Constitution guarantees us the right to spea k free ly in areas where the federal protections app ly
only weakly, including, our supreme co urt has held , a tra in sta tion.6 Of course, the government
may reg ulate a speaker's conduct in order to preserve public safety and prevent unreasonable
disruption. But our supreme co urt has held that our state's laws can be used to punish pure
communication - such as the speech on BART's cell phone network -- only where the speech
creates "a clear and present danger of immi nent violence. "?
And as the wording of our state constitutional protection for speech makes clear, the
authority of the gov ernment to stop speech before it happens - as opposed to punishing it after
the fac t - is even more limited : "every person may free ly speak, write and publish his or her
sentiments on all subjects , being responsi ble for the abuse of this righ t." Cal. Const. Art. 1, § 2.
Under th is provi sion, the "right to speak, write, and publish, cannot be abused un til it is
exercised, and before it is exercised there can be no responsibility.t" If indiv iduals go beyond
what is permitte d by our laws and pro tected by the constitution they may be held responsible for
their actions; but BART canno t properly prevent protestor s or oth er cell-phone users from
speaking with one anothe r on the telephone in the first place. Our courts have held that even
private telephone carriers , whose actions are not constra ined by th e First Amendment, cannot
shut -off service simply becau se they believe that their customers may be usin g their se rvic es to
4 Sok ol v. Public Utilities Commission, 65 Ca l.2d 247, 255 ( 1966) ("t he disconn ection of teleph ones not only may
deprive the subsc ribe r of th e monet ary va lue of his eco nomic ven ture, but in suc h circumstances de nies him an
esse ntial mean s of communica tion fo r which there is no effect ive substitute . Hen ce, this restraint upon
communication by the subscribe r also affects his righ t of free speech as guaranteed by the First Amendment of the
fede ra l Co nstitution.") .

5 Kuba v. I-A Agricultural Ass'n, 387 F.3d 850 , 856 (9t h Cir. 2004).
6 In re Hoffman, 67 Ca l.2d 845 (1967) ; see Fashion Va!!ey Mall, LLC v. N. L.R.B., 42 Cal.4th 850 (2007) (right to
speak in private ly owned shopp ing ma lls) ; Prisoners Union v. Department ofCorre ctions ( 1982) 135 Ca I.App.93 0,
938 (priso n must a llow free speec h in its parkin g lot); u. c. Nuclear Weapons Labs Conversion Proj ect v. Lawrence
Livermore Laborat ory ( 1984) 154 Ca l.App.3d 11 57, I 162-1 169 (free speech must be allow ed in lab' s visitor
center) ; Kuba, 387 F.3d 85 0 (free speech must be allowed in park ing lot of public arena); see also Brown , 9 Cal.3d
6 12 (ra lly on co llege campus) .
7 In re Brown, 9 Ca l.3d 6 12, 621 ( 1973); see id. at 6)7 (punishment for disturbing peace must be " limited to
disruption of publ ic order by acts th at are themselves violent or that tend to inci te others to violence").
8 Balboa Island Village Inn, In c. v. Lemen, 40 Ca l.4th 1141,1159-60 (qu otin g Dailey v. Superior Court, 11 2 Ca l. 94
(( 1896)). The co urt in Daily held th at und er our state constitution a spea ker' s "mouth co uld not be close d in
advance fo r the purpose of preventing an utteran ce of his se ntiments, however misch ievous the prospect ive resu lts of
such utterance. He had the rig ht of free speech, but at all tim es was responsib le to the law for an abuse of that right."
11 2 Cal. at 100 .



facilitate crime." BART, which is bound to follow both the First Amendment and the California
Constitution's Liberty of Speech clause, must not do so either.
Thank you for your attention to this important topic.

Sincerely,
Michael T. Risher
Staff Attorney

cc: Kenton W. Rainey, BART Chief of Police (via email)
Kenneth A. Duron, District Secretar y (via email)