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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.
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.
20 Comments
Thank you, thank you. I have been wondering about the justification for this bullshit preemptive strike. I also wonder about those “free speech zones” that Matt Taibbi hilariously covered on Real Time with Bill Maher some time ago.
Cannot falsely shout “fire” in a crowded theater. Everyone always forgets that little modifier, but it makes a world of difference. One could argue that it is one’s duty to shout fire in a crowded theater if there was, in fact, a fire.
And that phrase still gets (mis)quoted to support restraint on free speech, even though that decision was later overturned.
Anyway – good analysis.
the PayPal connection:
Would you use a “downtown” bank if you knew a patron organization was the KKK? Why are these immediate money exchanges any different? Why do people in America use the criminal moneychangers Bank of America for their credit card transactions. We are so tied up in this financial culture we don’t even act on our own morality.
bart’s gonna have a meeting wed to discuss their actions – from sfgate:
my bold
People need some basic education of what BART actually did. Here’s an attempt to clear it up.
First, here’s a very simple diagram of how cell signal works for either voice or text/data:
http://www.flickr.com/photos/kcdenver/6064140296/
Now, here’s a very simple/dumbed down diagram of how the Telcos work at BART:
http://www.flickr.com/photos/kcdenver/6064140312/
What BART did was walk over to the black power switch boxes in pic #2 and without telling anybody until after the fact, just shut power off.
Can you see the impunity there?
From the same SFGate article:
Why does the SFGate continue to say that “a protest” shut down the BART stations? BART shutdown the BART stations.
So very true.. Bart chose to shut down those stations in an attempt to blame the protestors!! All I can say they ARE ASSHOLE of the first degree!! Blatant disregard of the first amendment!!!
My handlerer’s handlerer! We know your’re true to the cause!
BART claims it had advance notice that protesters would shut down service “possibly chain[ing] themselves to trains” so they had to act.
Chain themselves to trains??
BART: Here’s why we cut cell service
By Matthias Gafni and Doug Jastrow
Contra Costa Times
The plan was for color-coded protesters to possibly chain themselves to trains and shut down BART’s busy evening commute. The red team was the front line, representing a “high possibility of arrest,” and all groups would text BART security positions to each other to monitor response times and coordinate actions over several stations for the Aug. 11 surprise demonstration.
It was such a serious threat that hours before the protest, in an emergency closed session, BART police briefed its board members of the threat and decision to terminate cell service for four hours.
In a three-page, open letter to its passengers and interviews Saturday, BART brass provided the most detailed glimpse into what led the transit agency to make its controversial decision to terminate cell phone service at its stations to thwart the possible protest.
“The overall information about the planned protest led BART to conclude that the planned action constituted a serious and imminent threat to the safety of BART passengers and personnel and the safe operation of the BART system,” BART’s interim general manager and board president wrote.
The BART police have lost so much credibility, that this article/reason for shutting down cell phone communications sounds more like a false flag event. First the Bart police claim someone will chain themselves to a train, next they claim they must take serious measures to protect the public and BLAM, the BART police get more money, more stuff, etc.
Anonymous seems like a high-tech kinda of group that would not resort to low-tech handcuffing to trains tactics. Maybe it is the cynic in me, but the BART police have demonstrated more than enough evidence that they are not worthy of a lot of trust.
This is an excellent post, Kevin. Very clear exposition. Thanks!
I’ve wondered whether BART in some way violated its responsibilities as a common carrier by shutting down those stations unnecessarily.
Are cell phone companies common carriers? Did BART interfere impermissibly in the operation of a common carrier by shutting off wireless access? Did it somehow “steal” the cellphone services for which commuters had paid by shutting their access off?
“[P]ossibly chain themselves to trains,” indeed.
Great post. I have one question. There is no doubt in my mind this was not “imminent lawless action“ and therefore BART’s action does not meet the Brandenburg exception. But I am not sure about this:
Brandenburg and many of the cases relied on in that opinion involved seditious libel, but I am not sure the opinion or test suggested it was limited to sedition. The full sentence seems to imply as much:
(Note too that even if the exception did apply, that would justify arresting those calling for the action, not the obviously over broad denial of speech indiscriminately).
Gosh, it’s hard to get a word in on this thread with the hundreds, er dozens, er, handful of posts, but I will still insist that:
1. shutting off power to their own equipment did nothing to prevent the protesters from demonstrating. The protesters were still able to assemble wherever they wanted. BART simply took away one weapon these people had available to ORGANIZE that protest.
2. the recent protests on train platforms, which put people in physical danger and disrupted train service to thousands, should be adequate evidence of imminent danger.
I think you will see the courts hold this to be true, though BART will likely come out and say that they should not have done this, and Firebaggers everywhere will rejoice.
While they’ve been talking (kinda) tough, it’s obvious from their actions that the BART authorities have backed away from some of their more egregious decisions, including arbitrarily shutting off cell phone service in the Downtown stations.
Nevertheless, they are still treating the protests as acts of civil insurrection (not simply civil disobedience) that require overwhelming police response, up to and including threats of mass arrest and violence on the part of the authorities to put down an insurrection that rationally isn’t taking place anyway. It’s not just that they shut down cell phone service in the Downtown stations. (Note: they apparently haven’t repeated it; and at least for now the NorCal ACLU has agreed not to sue over it. )
The issue now is that the BART cops and SFPD are responding to the ongoing protests as if they represented national security threats much like the overpolicing of protests at the political conventions in 2008 or the ridiculous and violent level of crowd control and protest suppression at financial/trade conferences anywhere and everywhere since 1999. Since the protests were originally about the propensity of BART cops and SFPD to shoot first and ask questions later, if ever, given the mounting death toll and the danger to citizens these police actions represent, the issue is well beyond the Brandenburg rule and exceptions. This is also about overreaction and death-dealing by a so far unaccountable Authority.
BART has elided the cell phone issue by not turning off service again. They have been shutting down stations instead and cordoning the system from access by riders and protesters alike. The problem of killing riders, endangering citizens, and overreacting to citizens’ demands for redress and accountability remains as acute as ever.
htsbd has a great point — citizens can’t protest w/o a cell phone? As a geezer w/o a cell phone (possibly the last of the breed) I can’t help but notice, when I visit a city, that many have their hands up to their ears. But must protesters follow this example in order to function as protesters?
I didn’t see any cell phones in the pipeline protest livecam (which wasn’t necessary either, but nice).
The point about the inherent danger of messing around on train platforms was good too. I’m all for protests when needed, but how about doing it in front of BART HQ rather than on train platforms? Those damn things (trains) don’t exactly stop on a dime when somebody gets knocked onto the tracks.
Don’t forget that the protesters had full cell access outside the train stations as well. The only thing that BART shut down was the systems that transmit cell signals within the stations themselves.
You have to be a pretty lazy protester if you can’t organize a demonstration because your iPhone won’t work underground.
No – you keep saying that and it is flat out wrong.
BART shut off power to the carrier’s engineering cabinets – they’re spokes person Allison out and out said so.
So they disrupted the contract between the carrier and the customer whether they were protesters or not.
I found the post to be extremely disappointing, in that it doesn’t even acknowledge the existence of this argument — instead claiming that BART did not “identify any way in which the protest would make anyone unsafe.”
If you want to disagree with BART’s safety argument, fine. But pretending it doesn’t exist reduces the entire post to a long-winded strawman attack.
No, shame on you, Jay Leiderman, for a dishonestly premised post. And shame on you, Kevin Gosztola, for not doing a better job of vetting it.
INSIDE. The BART station. Not outside, not nearby. Just where other cell signals were not accessible. So the protesters had the full ability to organize EVERYWHERE ELSE!
Can you hear me now, Kevin?
Kevin has a way of writing more and saying less, more than anyone I know. He is soooooooo intent on pushing his point that he ignores the obvious reasonable arguments on the other side, quotes what he knows to be “hacks” (his words) and bends his rhetoric to the point that not even his supporters can side with him.
We learned in debate to be able to argue both aides of any proposition. Something tells me that Kevin didn’t excel in debate class.