BART’s Protest Position Does Not Withstand Legal Scrutiny

BART Protest (Civic Center Station, San Francisco, California: August 15, 2011)
BART Protest (Civic Center Station, San Francisco, California: August 15, 2011)
Image credit: The Examiner - Transit agency head defends cell service shutoff

Guest post by Jay Leiderman of Leiderman Devine LLP [ @LeidermanDevine ]. Also available on Paste2.

On Tuesday, 16 August 2011, BART [ @SFBART ] spokesperson Linton Johnson [ @BARTChiefSpokes ] held a press conference to address the need to disrupt communications in advance of a lawful, peaceable assembly. He spoke of a US Supreme Court case from 1969 that he said supported BART’s right to do so. Indeed, there could be no other case that Mr. Johnson was referring to besides Brandenburg v. Ohio (1969) 395 U.S. 444 [ Wikipedia ], the 1969 case that said that prior restraints upon seditious speech were valid in such narrow circumstances that the government must prove that the seditious speech was going to cause an “imminent lawless action” before a restraint on speech could stand. No case following Brandenburg has ever held speech to constitute an “imminent lawless action.” BART, as judge, jury and executioner of free speech, is the sole body to reach that conclusion. Note that Brandenburg involved a criminal statute, and BART simply was an administrative decision. However, as they rely solely upon Brandenburg, I must answer that alone.

Johnson assures us that a conservative lawyer, Sherwood Wakeman, pained over this decision and that it was for safety, yet he fails to identify any way in which the protest would make anyone unsafe. Moreover, he fails to establish that this would be an “imminent lawless action” – – or would break any law at all.

http://www.youtube.com/watch?v=EMgsLXSMYEg

Johnson incorrectly centers his analysis upon what he deems an “imminent lawless action.” “Imminent lawless action” is the successor to Justice Oliver Wendell Holmes “Clear and Present Danger Test.” Holmes famously drew the line at free speech by declaring that one could not shout “fire” in a crowded theater. Brandenburg replaced that test with that of an “imminent lawless action” test. I don’t think we even get that far in this analysis. The speech in and of itself has to be seditious in the first place. Standing on a train platform in a Guy Fawkes mask holding a placard cannot, by definition, be seditious.

18 USC section 2384 defines “Seditious conspiracy.”

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Let’s contrast the BART protest to the protected speech in Brandenburg. Brandenburg, a leader in the Ohio KKK, was going to march on Washington, possibly with a well-armed militia, to advocate that blacks be returned to Africa and Jews to Israel, and suggested that if Congress, the President and the SCOTUS continued to suppress the white man, that “revengance” might be taken. Note that a unanimous SCOTUS found that exercise of first amendment privilege neither seditious nor an imminent lawless action.

“[W]e are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments.”

See also note 4 of Brandenburg:

“Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action, for, as Chief Justice Hughes wrote in De Jonge v. Oregon, supra, at 364: “The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental.”” (395 US 444 n4.)

By travelling down the Brandenburg path, BART, via Linton Johnson has accused the lawful protestors of actions that were imminently going to be lawless. Yet he fails to provide any support for this position. Most saliently, the facts of the BART protest do not come close to those raised in Brandenburg. Would he argue that the KKK, guns in hand, can advocate marching on Washington to take back their country for the white man is permissible, but standing on a platform in a Guy Fawkes mask with a protest sign is seditious and certain to create “imminent lawless action?” Such an argument is not well taken. Brandenburg did not keep the Nazi’s from marching in Skokie, Illinois. It clearly cannot be used to disrupt communications in advance of a peaceful protest.

Still, Johnson assures us that the BART protests fit within that narrow margin. Justice Douglas’s concurrence points out how rare and unworkable the exception to the Rule in Brandenburg is.

“When one reads the opinions closely and sees when and how the “clear and present danger” test has been applied, great misgivings are aroused. First, the threats were often loud, but always puny, and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.”

“Action is often a method of expression, and within the protection of the First Amendment.” (395 US at 455)

BART’s legal analysis fails.

Perhaps most troubling in all of this is the now persistent KKK connection. We have now seen that PayPal will process donations for the KKK but not for Wikileaks. This has been eloquently pointed out by many in the Anonymous movement and I will not add to that here. I will simply state that once is an accident. But seeing the KKK with greater protections than those afforded to modern dissident speech twice? This cannot stand. Shame on you, BART, Linton Johnson and Sherwood Wakeman.

Next: #BART Special Board Meeting re: Cellphone Shutdown & Protests
Earlier: BART cellphone shutdown option introduced to board of directors in closed session; or, 3 Questions For #BART

BART cellphone shutdown option introduced to board of directors in closed session; or, 3 Questions For #BART

Trouble up and down the line for BART
Trouble up and down the line for BART

Before beginning, it’s worth stating that EFF-Austin [ @EFFaustin ] is based in…well, Austin. Our statements have no association with national EFF [ @EFF ], based in San Francisco, beyond the principles we share (see here for details on that history if you’re interested; our hearts go out to you guys during this challenge, you have our support). As such, EFF-Austin’s analysis is restricted to online sources and documents.

That analysis has revealed a discrepancy in the first public statement made by Lynette Sweet, a Director on BART’s board, in the wake of BART’s shutdown of cellphone and 911 service for passengers last Thursday between 4-7pm PST at least between the Civic Center and Embarcadero stations. Sweet provided an interview to San Francisco’s CBS affiliate KCBS in which she roundly condemned BART’s action. The statement that interested us occurs at the beginning of the interview (audio excerpt below):

“The BART board was alerted just a few hours before they planned to do this without having it as an agenda item. We really couldn’t talk much about it.”

[audio:http://effaustin.org/wp/wp-content/uploads/2011/08/bart-board-lynette_sweet-2011_08_13-agenda_item.mp3|titles=KCBS (Aug 13) – Interview w/ BART Director Lynette Sweet – excerpt re: agenda item]

That directed us to the Agenda for the board meeting in question, available on the BART website. That meeting was scheduled to begin at 9AM PST on Thursday August 11th. The cellphone shutdown occurred at 4pm PST that very same day.

#BART – Board Meeting (August 11, 2011) – Agenda

According to this version of the document, there is in fact a relevant agenda item listed on page 3:

10. CLOSED SESSION (Room 303, Board Conference Room)
A. THREAT TO PUBLIC SERVICES OR FACILITIES:
Consultation with: Chief of Police; Acting Manager, Rail Security
Programs; and Assistant General Manager – Operations
Government Code Section: 54957(a)

That’s some important information.

BART board meetings are scheduled in advance and a “Notice of Meetings” is sent out, sometimes with attachments. A notice for Thursday’s BART board meeting was sent out on August 5th, and included the agenda as an attachment. Here’s that notice:

San Francisco Bay Area Rapid Transit District – Notice of Meetings (Aug 5, 2011)

So, the agenda for Thursday’s BART board meeting—which includes reservation of a closed session timeslot for discussion of “THREAT TO PUBLIC SERVICES OR FACILITIES”—was ready to go by August 5th. Our analysis of the metadata embedded in the agenda document confirms this.

  • Document Author: Pat Williams (would love to chat!)
  • xap:CreatorTool: Microsoft Word 2007
  • Document Last Modified: 8/5/11 6:46:45pm

If this document is to be believed then a timeslot was reserved for a closed session with the board fully six days prior to the event. It’s important to emphasize that this does NOT necessarily mean that the subject matter of that meeting was determined in advance (I guess it’s equally important to emphasize it might mean just that!). At a minimum, it signifies awareness that a meeting might be necessary. That’s an important item to keep in mind as questions swirl about whether the BART board COULD have had time to deliberate a formal policy decision.

By now you might be wondering, as we were, about the people who participated in the meeting and what their responsibilities are. With a little help from the index of BART Job Descriptions and Google, we were able to identify these folks for future reference:

Kenton W. Rainey, BART Police Chief
Kenton W. Rainey, BART Police Chief
Image credit: Oakland North - A new chief for the BART police seeks to heal community ties


Sgt. Eugene Wong, left, and Sgt. Kevin Franklin patrol a San Francisco BART line.
Sgt. Eugene Wong, left, and Sgt. Kevin Franklin patrol a San Francisco BART line.
Chronicle photo by Frederic Larson.
Image credit: SFGate (October 23, 2004)


Paul Oversier at the BART Police Department Review (November 11, 2009)
Paul Oversier (far left) at the BART Police Department Review (November 11, 2009)
Image credit: Indybay


A few things seem clear to your observers from Texas. It seems like the BART Board has been having its own internal trouble for quite some time. And it seems like there is an adversarial relationship between the board and other parts of the BART organization. And it seems like the BART system in general is in trouble both financially and in terms of customer satisfaction; their biannual customer satisfaction survey (p. 16) indicates “40 out of 47 ratings (85%) of specific service attributes were lower in 2010 compared to 2008.” And it seems like BART just keeps digging the hole deeper, such as with this over produced video—completed overnight on Thursday August 11 in time for publication to YouTube and promotion by 8:38am PST Friday morning—which could be characterized as a “preemptive strike” seeking to justify BART’s actions on Thursday night:

http://www.youtube.com/watch?v=HsKEvd6gH0A

Unless BART gets their act together, and stops taking an adversarial stance to world opinion, this debacle could truly result in greater formally codified civil liberties for Americans as an example for the rest of the world to follow. But I guess that’s what America is supposed to be all about, right?

I present BART with these questions three, answer rite we might forgive ye:

  1. When did the cellphone shutdown option become the subject of the timeslot reserved sometime before Friday August 5th, 2011 at 6:46:45pm PST?
  2. When was the cellphone shutdown option conceived?
  3. Why wasn’t the BART board of directors notified of the cellphone shutdown option some time  between  times A and B?

Thank you, and help us do the right thing now, BART.

Next: BART’s Protest Position Does Not Withstand Legal Scrutiny
Earlier: Statement on San Francisco BART cellphone service shutdown

Statement on San Francisco BART cellphone service shutdown

Repressive foreign governments – in China, Egypt, Iran and Syria, to name just a few – have cut off communications (the Internet, mobile service and landline) as a means to repress dissent or expressive acts the regime deems inconvenient. Often, the repressive regime asserts that silencing their citizens was necessary to maintain the peace, or prevent damage to property. US authorities have been quick to condemn this denial of free speech. Indeed, according to several reports the US is funding an effort to develop means to deploy the “Internet in a suitcase” and “independent cell phone networks” that “dissidents can use to undermine repressive governments that seek to silence them by censoring or shutting down telecommunications networks.”


Sascha Meinrath [ @SaschaMeinrath ] of the New America Foundation [ @NewAmerica ] opens up the “Internet in a suitcase.”

The first use of this US-funded detour around censors, however, may need to be right here at home if recent events involving the San Francisco Bay area, within the metropolitan transit system known as BART, are repeated.

Connectivity to traditional radio towers to obtain mobile phone and data service is often difficult in large, dense buildings, and it is practically undeliverable in subways or below-ground trains. The larger mobile service providers sometimes cooperate with the owners of such venues to place repeaters or smaller microcells using the mobile provider’s licensed frequencies. A few years ago, BART made arrangements with several of the mobile providers to do so in several of its locales. BART also contracted with a company that provides Wi-Fi capability, although the service is not free.

On July 3, 2011 a transit police officer fatally shot a man. The police assert that the suspect threw a vodka bottle at the officer, then came at him and another officer with a knife. A protest about a week after the shooting had disrupted service on BART.

BART officials apparently learned that another protest was being planned for August 11. According to BART, the protest was intended to once again shut down the system and it was going to be coordinated using online tools, with virtual real-time reporting about the number and location of law enforcement. BART officials decided to disable communications by powering down the mobile service repeaters/microcells and the Wi-Fi routers in order to inhibit this planned on-line coordination. The protest never happened, but all transit users suffered from the loss of connectivity.

Bart (Simpson) suggests penance for #MuBARTek debacle
Bart (Simpson) suggests penance for #MuBARTek debacle.
Image credit: San Francisco Citizen - Nice One, BART - You Went and Pissed Off #Anonymous With Your Cell Phone Hijinks

While EFF-Austin [ @EFFaustin ] cannot condone illegal activity, we strongly support the right of citizens to peaceably assemble, to organize such assemblies, and to exercise their First Amendment rights using modern communications. We see no material difference between BART’s take-down decision, its immediate and subsequent justification, and what has happened with sad regularity in other parts of the world. The most recent news indicates that the BART board has now realized it committed a grave error and plans to take steps to ensure it is not repeated. That is encouraging.

We do find it somewhat interesting that the mobile service providers claim to have had no involvement in, or previous knowledge of, the decision and action to take down. If this is true, then it appears there have been at least two separate violations of federal law. BART’s action probably violated section 333 of the Communications Act. The mobile providers’ decision to give control over the mobile service repeaters/microcells to BART also probably violated the terms of their licenses and FCC rules, 47 C.F.R. sections 22.383 and 22.527, and possibly others. The FCC noted only a few months ago that “the Commission’s rules and policies adopted pursuant to section 310(d) require that licensees maintain control over and responsibility for their assigned spectrum, equipment, and operations. Similarly, section 1.903 established that stations in wireless services may only be operated with an FCC authorization (i.e., license).” Violations are punishable by fines and forfeitures. Although the FCC is considering changing these rules—in an effort to encourage further use of repeaters and signal boosters by users—the rule changes have not yet gone into effect.

We are glad that BART may have realized the grave nature of its mistake, and hope that they commit to not doing this again. Our government is developing alternative mobile technologies under the presumption they would be deployed in countries subject to repressive regimes bent on denying free expression. The sad but delicious irony is their first use may be required right here at home – because a repressive local, state or national governmental body has decided to deny free expression using the same excuses heard abroad: that disconnection is “necessary” to “protect property” or “the public order.” Considering the volume of outcry in response to this event, it seems the decision makers at BART may have unwittingly provided an opportunity to renew and strengthen civil liberties in the United States. The world is watching.

Next: BART cellphone shutdown option introduced to board of directors in closed session; or, 3 Questions For #BART