BART Vows to Develop Policy After Free Speech Protests

BART's board of directors was briefed on the controversial option to shut off cell phone service four days before a planned demonstration at one of its San Francisco stations, but took no action, leaving the final decision with Paul Oversier, assistant general manager of operations at BART and the BART police chief.

Stung by strong local and national criticism for the cell phone shutdown, BART board members Wednesday found themselves debating the issue of allowing protesters freedom of speech while ensuring public safety.

The agency met to address recent protests over the agency’s decision to suspend cellular service in downtown San Francisco train stations on Aug. 11. The cell interruption was an effort to thwart a planned protest over the fatal shooting of a homeless man by BART police at the Civic Center station on July 3. 

BART cited safety concerns for cutting phone service, stating that a protest on a train platform might lead to injuries and possible deaths, especially during the congested evening commute.

“BART police had credible evidence that protesters would resort to violent and illegal actions,” said BART General Counsel Matthew Burrows.

But protesters interpreted the agency’s decision as a way to quash their First Amendment rights. As a result, hundreds of people gathered on Aug. 15 and Monday at downtown BART stations and along Market Street, prompting BART to interrupt train service and close some San Francisco stations during the evening commutes. 

The American Civil Liberties Union of Northern California sent a letter to BART officials on Monday asserting that although, under certain circumstances, freedom of speech can be regulated and punished, courts have upheld that it cannot be prevented. That would mean BART cannot forbid any cellphone user from speaking to another. 

The letter cited court cases where even when customers may be using a cellphone to facilitate crime, carriers cannot shut off service.

“Do we want to have a society where the government shuts down a network used by thousand and thousand of people simply because a few of those people are using it for a particular purpose?” asked ACLU of Northern California staff attorney Michael Risher.

BART's legal counsel said it acted within its legal authority, pointing to a Supreme Court decision, Brandenburg v. Ohio, that allows the restriction of free speech that is “directed to inciting or producing imminent lawless action.”

“What we’re seeing is what happens when two rights collide,” said BART Director Joel Keller. “The right to safety and the right to free speech. That’s what we acted on as an agency.”

For example, BART believed the protesters might become too rowdy and accidentally push someone into the tracks.

About 36,000 people enter and exit Embarcadero station during the evening rush hour, or about 177 people per minute, according to Oversier.

A train service interruption of even eight minutes during rush hour can have dire consequences from platform overcrowding, Oversier said.

Some argued that disrupting cellphone service contradicted maintaining safety. 

“If BART cared about public safety, it would allow people to call 911,” said a man who identified himself as Krystof, the leader of No Justice No BART, the organization behind the protests.

He said he aims to continue organizing protests until BART disbands the police force. 

Linda Drattell, a spokesperson for the Deaf Counseling Advocacy & Referral Agency, thought it was imprudent to shut off cell service that is critical, especially in an emergency, to the many deaf and hearing-impaired people who ride BART.

The board again took no action after the meeting, but will review its policy on cell phone disruption for the future.

BART Director Lynette Sweet said BART must work with the public to restore trust, and that First Amendment rights must not be infringed upon under the pretense of safety.