Technology Aids Free Speech - And Its Suppression

Eugene Volokh, professor, Law, UCLA Law School, Los Angeles, Calif.

Ken Paulson, president, First Amendment Center, Vanderbilt University, Nashville, Tenn.

Cellphones and the Internet have democratized free speech more than town hall meetings and the printing press. But they also provide governments with easier ways to monitor—and switch off—communication. Ira Flatow and guests discuss the BART cell service shutdown, and the role of social media and messaging in the London riots.

Copyright © 2011 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

IRA FLATOW, host: You're listening to SCIENCE FRIDAY. I'm Ira Flatow. And I'm guessing that if you're like me, along with your house key, there's something you take everywhere you go, right, your cell phone or maybe your tablet because for most of us, cell phones have become an indispensable part of everyday life, and you expect the service to be available pretty much on 24/7 just about wherever you go, just like you expect the heat and the hot water and the gas and the electricity to be working all the time.

But in San Francisco last week, a government agency, Bay Area Rapid Transit, or BART, pulled the plug on cell phone service for a portion of its line in an effort to disrupt protesters organizing a demonstration.

They didn't warn anyone that day to beware of the loss of phone service. They didn't make any advance announcements that you're going to lose your cell phone.

Is that even legal? Or is it a violation of First Amendment rights? The government can't just unexpectedly disconnect your landline phone, right? Why should it be any different for cell phones? And when governments in Cairo or Tehran or Damascus shut down the cell phones or Internet so that protesters can't tweet or video from the site, it's viewed as a blow to free speech. Why is this case different?

What do you think? Give us a call. Our number is 1-800-989-8255, 1-800-989-TALK. And if you're on Twitter, you can tweet us, @scifri, @-S-C-I-F-R-I. Or go to our Facebook page and tweet us there or leave a message there, and go to our website at sciencefriday.com, and leave a comment. We'd love to hear from you.

Let me introduce my guests. Eugene Volokh is a professor at the UCLA School of Law who specializes in cyberspace law and First Amendment law. He joins us by phone. Welcome to SCIENCE FRIDAY, Dr. Volokh.

EUGENE VOLOKH: Thanks very much. I should say I'm not a doctor. Many law professors, we just have JDs. So I'm professor, and it's Volokh, rhymes with Pollack.

FLATOW: Volokh rhymes with - like another Pollack who's in Los Angeles. Well, OK, I'll try to get it right. Thank you very much. Ken Paulson is president of the First Amendment Center at Vanderbilt University in Nashville. He joins us from a studio there on campus. Welcome to SCIENCE FRIDAY, Dr. Paulson.

KEN PAULSON: Also not a doctor, and good to be with you.

(SOUNDBITE OF LAUGHTER)

FLATOW: Well, you're both honorary doctors today, so...

VOLOKH: Doctor just means learned, and we like to think we're learned.

FLATOW: Well, your moms might be happy you get promoted today. Well, Eugene, what's your take on the BART cell-phone shutdown? Did it violate any First Amendment rights, do you think?

VOLOKH: I don't think it did because we're talking here about BART blocking access for cell phones on its own property and blocking access that, as I understand it, uses cell phone hardware on its property.

Here's - at least based on press accounts, as I understand it, BART, which is in the business of trying to provide convenient and reliable service to people, at one point to maximize convenience, put up cell phone hardware on its property in order that its customers can be - can talk on the phone.

Because of the plans for protest, that as I understand wouldn't just be protest, would be disruption of service, BART decided that it was no longer, for that day, conducive to convenience to provide this cell phone hardware. So BART decided to turn it off for the duration of that day.

I think that's something the government is entitled to do. Now, if the government were doing it with regard to private property, for example as you point out shutting off your landline, that would pose very serious First Amendment problems.

Likewise if it did in a traditional public forum, like a park, that might very well pose serious problems, as well. But 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, so long as the restrictions are reasonable and viewpoint neutral, and they seem to be so here.

So I think in this instance, this particular restriction would probably be constitutional. But broader restrictions that operate on private property, I think that would be unconstitutional or at least unconstitutional absent a very pressing public emergency.

FLATOW: Ken Paulson, your take.

PAULSON: You know, we can tie ourselves in legal knots talking about whether it's a public forum or a non-public forum. But even if it's a non-public forum, there is a requirement the government's actions be reasonable.

And it seems to me that if I'm BART, and I'm looking at the possibility of what I think may be a disturbance, a disruption, perhaps an impedance of traffic along the platform, I'm calling in our security, I'm planning police presence, I'm talking about crowd control. I'm not sure I would say hey, let's cut off cell phones for three hours for thousands of people on the off chance that they're not calling for pizzas or calling home.

It just seems to me to be an unreasonable and somewhat irrational reaction to this. We're at a disadvantage because BART keeps talking about the intelligence it has. They haven't shared that with us. And there was arguably a constitutional right to a peaceful protest somewhere on the premises, and this strikes me as a gross overreaction and arguably a violation of the First Amendment.

FLATOW: Eugene, any response?

VOLOKH: Yeah, well, the court has made clear that for First Amendment purposes, transportation networks such as this are not public fora. And in fact you can't have a protest in the middle of a BART station. You can have one outside but not inside it because it's a non-public forum.

The court has also said that the question isn't what we think is the most reasonable, you or I or the justices, it's whether it is a reasonable reaction. And reasonableness tests are usually pretty deferential to the government, especially since here, the burden is really quite modest. It was a three-hour shutoff, but for any particular rider, it was just for the duration of their trip on the BART.

And as I understand it, before the cell phone hardware was put up some years ago, you couldn't use your cell phones at all on BART, and somehow people managed to make do. So I think this is the kind of situation where, when you're talking about the government restricting things on its own non-public-forum property, you can focus more on its functional goals, which are simply making sure that people get places reliably, without slowdowns, without shutdowns of service, even if that means restricting people's speech in a viewpoint-neutral way.

My guess is that many BART riders, I think probably most BART riders, if told look, you can either have a delay of an unspecified likelihood in duration in your trip, or just this one day you can't use your cell phone on the trip, my guess is that most BART riders would say I go on BART not to protest and not to talk. I go on BART to get from place to place. And the government has a good deal of authority to make sure that indeed the trains run on time.

FLATOW: Well, why not warn them, then, in advance that this is going to happen?

VOLOKH: So that's a plausible argument. It may be good as a matter of customer relations, although maybe it's not so good because either it was a last-minute decision or that warning might have helped people - helped the bad people organize their activity.

But while that's a good argument about good public service, in some situations a good breach of contract argument - although I don't think that would be in play here - it's not a First Amendment argument.

The government is entitled to restrict - to essentially turn off its cell phone hardware and thus restrict cell phone communications. It may be a bad idea for it to do it without warning, but I don't think there's a First Amendment duty to warn in that kind of situation.

FLATOW: Ken Paulson, does the First Amendment need an update to deal with technology?

PAULSON: No, actually I think it's been incredibly sturdy. When you think about the 45 words ratified in 1791, they've gone unchanged but of course not unchallenged. They have worked for us with almost every - well, literally with every new generation of technology.

James Madison was not thinking about television back in 1791, and yet we've been able to use these core principles, which basically say government cannot interfere with our freedom to express ourselves or to worship the god of our choice, it's worked incredibly well.

The courts have been able to adapt those 45 years to generation after generation of technology, and, you know, we shouldn't mess with the core of the First Amendment under any circumstances.

FLATOW: How do we keep the moral high ground now in places like - you know, in Syria and other places where government shuts off the cell phone system, and we say that's a bad thing for freedom of expression and protests, so they're allowed to protest - how do we keep the moral high ground now if we're shutting it off in San Francisco?

VOLOKH: Well, the fact is that you can't just try to come up with rules that will apply equally even in times of foreign revolution. And we applaud people who revolt against their government, but if somebody revolts against the government of the U.S., we're of course going to try to shut that down using military force.

Likewise, we may applaud people gathering in a public square outside the government, a government building, but if you try to gather without a suitable permit at various places in Washington, D.C., that rightly say look, you're tying up traffic, this is isn't something that we can allow.

My sense is that foreign countries - the Chinese, the Syrians and such - are not going to be terribly moved by the content of our First Amendment doctrine in any case. Conversely, we can't organize our First Amendment doctrine in a way that would have been optimal for people in a foreign country that doesn't respect constitutional law, constitutional principles, which is why they're trying to revolt against it.

So I don't really see the attitude of the Chinese, or the likely action of the Chinese, as terribly relevant to the question of what should the authority be of a government body that's trying to implement rules to keep it functioning and keep clients getting to where they paid to get at the right time.

I'll give you an example. At our own UCLA Law School, we provide wireless Internet access for students because we think it's usually useful. But we turn it off in classrooms, at least in many classrooms, because we're afraid that during class time, being able to access the Internet is a distraction.

Is that a restriction on speech? Well, yes, in the sense that they can no longer email their friends from the class, or at least it makes this much harder. But I think it's a permissible one because it's just us imposing restrictions on what we're - on the property that we own and that we - we as the government own - and that we're trying to use for functional purposes.

FLATOW: Ken Paulson, the Electronic Frontier Foundation has compared the cell phone shut-off to the Internet shut off in Egypt. Is that - do you agree with Eugene that this is not a good comparison?

PAULSON: Well, that's moderately overheated rhetoric, and I do think other governments in other nations look to us and look for hypocrisy if they can identify it. When you go back to the WiFi example in the classroom, I think it's a little too benign an example - you know, if you use WiFi withdrawal as a punishment or you target certain students and not others with WiFi withdrawal.

You know, the case in the BART case, you need to step back for just a minute and say, OK, what are the circumstances surrounding this one? Police officers shot a homeless, mentally ill man to death on a train platform. This caused community outrage and anger because two men had been shot in two and a half years on train platforms. And so when BART learns that citizens might be coming to its premises, you know, the public can complain about its conduct, it shut off phone service for thousands of people.

This wasn't a protest against the war in Afghanistan. This was not a rally about Obama's economic policy. This was about BART turning off cell phones, silencing cell phones to silent its critics. It was a direct correlation. That's why I don't view this as a sort of not discriminating against a viewpoint. They did it in a three-hour period because that's when this group of people intended to express themselves.

FLATOW: 1-800-989-8255 is our number. Let's see if we can get a phone call or two in. Coleman in North Carolina. Hi. Welcome to SCIENCE FRIDAY.

COLEMAN: Thank you. First-time caller. I just wanted to say, Gandhi, Martin Luther King, even Jesus if you believe, didn't have electricity and they managed to create great commotions and do great good with just people getting out, painting on signs. They didn't have electricity. So let's take electricity out of the equation and see if these people could raise all the Cain they're raising.

FLATOW: Ken, do you have any comment?

PAULSON: Well, imagine how effective Gandhi would have been with a Twitter account. I do think there are powerful speakers throughout history whose messages have been heard and - but the extraordinary communications we have now amplify it. I mean, this is the golden age of the First Amendment. You know, free - the Internet, WiFi access, universal WiFi access, is really kind of the killer app of the First Amendment, and it's in extraordinary time.

And the irony, of course, is that each of us has more powerful freedom of speech and freedom of press because of the reach of what we do. And yet now we kind of labor under the anxiety of what happens if somebody does flip that switch and that extraordinary of gift of communication disappears on us.

FLATOW: We're talking about the science and technology and communications and the freedom of speech this hour on SCIENCE FRIDAY from NPR.

I'm Ira Flatow with Ken Paulson and Eugene Volokh. Our number - 1-800-989-8255 - is our number. How - Eugene, how do you react to that? Was the government, in this case, targeting a specific message? Is it the message, that of the protesters, is that the right thing for it to do?

VOLOKH: So recall that this involved a shutdown of service on the trains. If somebody wants to organize a protest outside a BART station, they have every legal right to do that. They would be perfectly free to do that by communicating to people who are not on trains or who get the message before they get on train or get the message after they get on train. It's just really a very modest restriction. And therefore, I think, one that's not terribly useful to shut down ordinary legitimate protests against BART. Lots of protests can still happen. And BART wasn't trying to stop them and wouldn't be able to stop them this way.

As I understand it, BART's concern was that people rather than lawfully protesting were going to illegally, inside BART, not just illegally speak, because you're not allowed to have protests inside BART, but rather actually block the doors to keep the passengers from leaving and arriving at the right time. And that, in fact, the worry was because it was illegal, they were going to try to coordinate their actions on the train network by communicating with each other by cell phone. So their worry was about a particular kind of illegal behavior, not lawful protest. And in fact, the shutdown seems to have been to be as well targeted as possible, given the limited tools at the government's disposal, to frustrating that protest while still allowing all sorts of other protest that could happen.

So that's why I think this kind of restriction that's targeted to the government's use of its own property on its own trains is permissible, even though I agree; if the government tried to shut down block-wide cellular by ordering private companies to shut it down, it would be a very different First Amendment question.

FLATOW: Mm-hmm. Last follow-up, Ken?

PAULSON: Well, one of my concerns is that the Associated Press reported this week, Paul Elias reported this week that BART police had asked employees for any ideas, and this is the quote - good or bad, constitutional or unconstitutional. You know, maybe there was some flippancy in that, but it's unsettling. And although this is - in terms of whether this is a violation of the First Amendment or not - and that can be debated for some time - the bottom line is that this is kind of a wake-up call. It awakens collective concerns about the power of any agency to cut off our communications for whatever period of time without any kind of check and balance, without any kind of process, and that is unsettling and it should be of concern to all Americans.

FLATOW: You know, the Chinese did react in talking about Great Britain, but they didn't specify Great Britain's shutting down communications. They said we may wonder why Western leaders, on the one hand, tend to indiscriminately accuse other nations of monitoring, but on the other take for granted their steps to monitor and control the Internet. So already the Chinese are talking about the moral high ground, and you can tell us what we do, right or wrong, and - but then, you know, you must consider how other people will look at your actions.

VOLOKH: I don't think we should be running our transportation systems with an eye towards how the Chinese can use what we're doing for propaganda purposes. The Chinese will do what they're going to do, and I don't think that our decision to shut down cellphone service on board is going to

FLATOW: Well, they're already stuck with our Treasury bills, so we don't have to worry about that. They're already paying for that. Gentlemen, we've run out of time. I want to thank you very much for taking time to be with us. Eugene Volokh is professor at the UCLA School of Law, who specializes in cyberspace law and First Amendment. Ken Paulson is president of the First Amendment Center at Vanderbilt University in Nashville. Gentlemen, thank you for taking time to be with us today. Have a good weekend.

VOLOKH: Thanks for having us.

FLATOW: You're welcome.

PAULSON: Thank you.

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