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Transit authorities vs. the First Amendment

August 21, 2011

August is turning out to be a really interesting month for transit authorities trying to censor people and suppress speech impose public health and safety regulations that impose slight restrictions on speech.

The big story is in San Francisco, where the Bay Area Rapid Transit (BART) district stirred up a huge mess earlier this month by shutting down mobile internet and phone services at several stations in an attempt to quash planned demonstrations against its police officers. The board claims that it took this action “out of an overriding concern for passenger safety,” and BART officials probably genuinely believe that, but free speech advocates don’t see it in quite the same light. As Rebecca Farmer from the ACLU’s northern California office wrote:

All over the world people are using mobile devices to organize protests against repressive regimes, and we rightly criticize governments that respond by shutting down cell service, calling their actions anti-democratic and a violation of the rights to free expression and assembly. Are we really willing to tolerate the same silencing of protest here in the United States?

The Electronic Frontier Foundation similarly accused BART of “pulling a Mubarak” and the hacker group Anonymous tried to retaliate but really only made itself look worse by stealing personal information belonging to more than 2,000 transit riders. A group called OpBART has scheduled another protest for tomorrow during the evening rush hour, leading BART to warn riders that it may have to shut some stations down.

Free speech and transit authority control also came up at the beginning of August in a Third Circuit case holding that Pittsburgh’s transit agency engaged in unlawful viewpoint discrimination under the First Amendment when it refused to run ads on its buses informing ex-prisoners of their right to vote. The denial was premised on a policy supposedly prohibiting noncommercial ads, but evidence at trial demonstrated that the agency had accepted numerous noncommercial ads over the years. See here for coverage from the Tribune-Review and here for a story from the Post-Gazette.

similar conflict was resolved just a few days later in a case from the Eastern District of Arkansas, where a group of atheists and agnostics want to run ads on buses reading “Are you good without God? Millions are.” But the Central Arkansas Transit Authority is worried that the ads will be vandalized and for whatever reason, they weren’t able to agree on an appropriate security deposit to pay for repairs. The district court settled the dispute by ordering the atheists to post a $15,000 bond and prohibiting the authority and its ad agency from imposing any other restrictions.

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