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BART board to discuss cutting of cellphone service

August 22, 2011 |  3:34 pm

Protesters at San Francisco Civic Center.

Bay Area Rapid Transit's board of directors will convene a special meeting Wednesday to discuss the agency’s decision to cut off commuters’ cellphone service earlier this month to preempt a planned protest that authorities believed would disrupt trains.

The board will discuss the Aug. 11 action and hear testimony on whether the tactic should continue to be used to assist BART police officers as they confront protests.

Photos: BART protest in San Francisco

The three-hour suspension of cellphone service in downtown San Francisco tunnels has already triggered a Federal Communications Commission probe and prompted constitutional law scholars nationwide to debate the intertwining interests of free speech and public safety on government-controlled transportation systems.

Meanwhile, activists with the loosely organized global hacking group Anonymous are planning their second protest on the train platforms at 5 this evening in response to what it considers censorship. The action comes one week after the group first called on its backers to protest on subway platforms. The protest could snarl the commute if protesters move to block trains as they did last week. Officers in turn closed four downtown stations for about 2 1/2 hours.

Anonymous describes itself as a "hacktivist" group and has temporarily crippled websites of PayPal -- in response to the service's refusal to process donations to WikiLeaks -- and other global government and corporate sites it construes as clamping down on the open flow of information. Members claimed responsibility for disclosing private information of more than 2,000 people registered on www.myBART.org in the wake of the cellphone shut-down. But efforts of Anonymous to pry its members away from their computer screens and into public places to protest marks an apparently new direction for the group.

BART has been the scene of a number of protests of two fatal officer-involved shootings on train platforms, the most recent involving an intoxicated homeless man armed with a knife. A number of the protests have been peaceful, with activists leafleting and playing guitars, and did not interfere with trains, BART Board President Bob Franklin said in a recent interview.

On July 11, however, protesters communicated by cellphone about which stations had the weakest police presence and acted accordingly. They stopped trains, leading to dangerously overcrowded conditions on the platforms and causing backups in tunnels where medical services are not available in case of emergency.

One man climbed on the roof of a commuter car, risking a fall onto the electrified third rail. When the same group began planning for the Aug. 11 action, BART officials said in a statement this weekend, intelligence revealed that they were intent on using similar tactics and had plans for “color-coded teams to conduct lawless activity on the platforms.”

“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, at a level that could far exceed the protest of July 11,” Franklin and BART interim general manager Sherwood Wakeman said in the joint statement.

BART officials maintain that the service disruption “was not intended to and did not affect any 1st Amendment rights of any person to protest in a lawful manner in areas at BART stations that are open for expressive activity” –- that is, outside the fare gates.

Some scholars agree. “When we're talking about the government controlling speech and communication on its non-public-forum property, such as transportation networks, generally speaking the government has a lot of authority,” UCLA law professor Eugene Volokh said in a debate on National Public Radio’s "Science Friday" show last week.

But other F1t Amendment experts disagree, contending that BART overreached by preempting the political speech of a specific group rather than deploying officers and other security measures to ensure safety once the protest was occurring.

“There was arguably a constitutional right to a peaceful protest somewhere on the premises, and this strikes me as a gross overreaction,” said Ken Paulson, president of Vanderbilt University’s First Amendment Center and Volokh’s sparring partner.


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-- Lee Romney in San Francisco

Photo: Protesters at San Francisco Civic Center. Credit: Maria L. La Ganga / Los Angeles Times