Like the first essay, the problem here is a matter of cherry-picking constitutional doctrine and the resulting analysis. Turning a time, place and manner restriction into content-based prior restraint is easily done, by ignoring the legal distinctions. A mobile phone in use at the possible site of an underground demonstration may not seem to you like a bullhorn used on a residential street at 2am, but the legal problem presented is akin to that, rather than to the Pentagon Papers. Your preferred solution on rewrite of the first essay, to make the central distinction you had to confront a mere inconvenience on reargument, is not generally speaking a good idea, and wouldn't work here either. I think you have good arguments to offer, but your habit of beginning by cutting off your awareness of current law at the root is not the best way to develop them.

"I will make it legal."

BART and the Cellphone Kill Switch

-- By NealBurstyn - 08 May 2015

Kill switches are in the news again.

On April 27, the Department of Justice filed its response brief to EPIC’s petition for rehearing in Electronic Privacy Information Center v. United States of Homeland Security. The DOJ argues that The Department of Homeland Security’s Standard Operating Procedure 303 (“SOP 303”), which is a protocol for determining whether or not to shut down wireless networks “during critical emergencies,” is shielded from disclosure by FOIA Exemption 7(F) which protects “records or information compiled for law enforcement” where disclosure can reasonably be expected to endanger life or physical safety.

While we await the results of that case, I thought it would be interesting to look back at the cellphone service shutdown implemented by a public transit system I rode everyday pre-law school.

The BART Shutdown

The shutdown caused an uproar, triggering accusations that that the shutdown “stifled free speech” and drawing comparisons to oppressive methods employed by “Middle East dictators.”

BART allegedly “acknowledged the problem with their actions” and promulgated a new cell service interruption policy in December 2011 that would recognize its commitment to First Amendment rights of expression. The new policy purports to allow temporary interruptions only when BART “determines that there is strong evidence of imminent unlawful activity that threatens the safety of District passengers, employees and other members of the public.”

“My Lord! Is that . . . legal?”

But now can I come to the same conclusion?

After the incident, the FCC issued a request for public comment on the issue and BART’s contribution was inadequate in its elaboration of how the shutdown was consistent with the Constitution, among other things.

In a more elaborate comment, Public Knowledge, the Center for Democracy and Technology, and the Electronic Frontier Foundation discussed how the BART incident “underscore[d] the arbitrariness with which any actor with the power to initiate a wireless interruption might exercise that power.” First, it explained that the FCC has authority over wireless communications pursuant to the Communications Act and that its regulatory authority preempted state laws. Noting that states are granted police powers, the comment explains that regardless of any state laws, no local authority “may enact policies that permit activity that would be illegal under federal law.” Thus BART’s flipping of the switch constitutes an invasion into the allocation of authority on the matter.

Setting aside the duel between local and federal actors over the allocation of authority on wireless service, we are left with the more pressing issue of whether the interruption of cellphone service at any level is legally sound. The Commenters naturally find that a discussion of the BART incident leads to addressing the looming shadow of SOP 303. Finding that SOP 303 lacked any judicial oversight whatsoever (based on summaries because the actual language is not available to the public), the Commenters conclude that the protocol is constitutionally deficient. “Government initiated interruptions of wireless service are a prior restraint on the lawful speech of every cell phone user in the affected area, and such interruptions will always violate the First Amendment unless they satisfy the highest possible procedural and substantive standards.”

---++ “I will make it legal.” As the Supreme Court recognized over 80 years ago, it is indisputable that “the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.” Near v. Minnesota. But the Court was also quick to note that the liberty of free speech is “not an absolute right, and the State may punish its abuse.”

With that tension in mind, we are then left with the rule that a prior restraint of expression “comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books v. Sullivan. The Government thus carries a heavy burden of justification for the restraint. Organization for a Better Austin v. Keefe.

Prior restraints on speech are commonly understood to come in two forms: (1) statutory in which the speaker is required to acquire a permit to engage in speech pursuant to a law or regulation; or (2) a judicial injunction. The BART shutdown, which by definition was a prior restraint on speech, seems to evade both categories. Similarly, SOP 303 appears to not meet the criteria for either. Both are unilateral in nature. As the Commenters note, under SOP 303 “there is no court in the loop at all, at any stage” in the process. By all accounts the BART shutdown was a decision made internally and the new policy issued by BART, although alleging full compliance with all applicable laws, merely states that any decision to implement a temporary shutdown requires authorization of the General Manager (who is not a judicial body, let alone a lawyer).

If we go back to the idea that I had as a lay person that BART had the right to flip the switch as proprietor of the equipment, the Commenters dutifully address this as well, noting that BART “did not and cannot own” the airwaves over which cellular networks operate. Moreover, any consideration of the proprietorship of the equipment or the public forum doctrine is simply irrelevant when the actions are isolated from judicial scrutiny.

This discussion thus illustrates why the FOIA request in EPIC v. Homeland Security is potentially crucial to understanding what SOP 303 and incidents like the BART shutdown actually are in terms of First Amendment jurisprudence.

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