DAVID GREENE, Host:
As for those events in San Francisco, first amendment scholars say they can't remember a time when a public agency in the United States moved to disrupt wireless traffic in quite that way. NPR's Carrie Johnson has more on the struggle to apply old first amendment principles in the context of new technology.
CARRIE JOHNSON: One group that promotes electronic freedom has compared the people who shut down cell service on the Bay Area Transit System to the recently deposed dictator Hosni Mubarak of Egypt. Tweeting, quote: "BART pulls a Mubarak in San Francisco." Lee Tien is an attorney at the Electronic Frontier Foundation, a civil rights group.
LEE TIEN: It's very clearly a major First Amendment problem whenever a government agency takes it upon itself to simply prevent people from being able to speak.
JOHNSON: The easiest way to describe the legal implications of what the transit authority did, Tien says, is to call it a broad prior restraint on the communications of thousands of cell phone users.
TIEN: You know, in the past, it's been aimed at, say, newspapers or at broadcasters or at book publishers, and in this case we've got a situation where it's aimed at the cell network.
JOHNSON: Courts generally frown on prior restraint in other contexts.
For its part, the transit authority says it acted carefully, blocking phone calls in just a few subway stations for a few hours to protect public safety and prevent chaos on platforms where trains race by at high speeds.
BART's chief spokesman, Linton Johnson, talked with reporters about the decision. He says BART has to balance the right to safety with other rights. And he says, transit officials do allow demonstrations so long as they're in a special free speech area away from the platforms and outside the fare gates. He says those restrictions are in line with Supreme Court precedent that allows the government to put limits on the time, place, and manner of protests.
EUGENE VOLOKH: The important thing here is that BART was limiting cell phone service on its own property.
JOHNSON: That's Eugene Volokh. He teaches law at the University of California, Los Angeles.
VOLOKH: And property that the Supreme Court has before labeled as nonpublic forum. It's not a park, it's not a sidewalk, not a place that's traditionally been devoted to public expression.
JOHNSON: Volokh points out that public universities sometimes block wireless access in their buildings so classes aren't disrupted.
In this case, BART officials fear their operations would be disrupted.
VOLOKH: Everybody was unable to speak on cell phones, regardless of what they were going to say. But the reason the government imposed this restriction is a worry that cell phones would be used to help coordinate a disruption of BART's service.
JOHNSON: Gene Policinski is executive director of the First Amendment Center. He's has been following the action in San Francisco.
GENE POLICINSKI: I think it raises real serious questions about government interfering with the ability of you and I to talk to each other. How far does that go? How far will the courts permit it?
JOHNSON: Back in his heyday in the 1960s, he says, the equivalent to a cell phone disruption might have been police swiping a protester's bull horn.
POLICINSKI: If government was seizing printing presses to keep people from understanding or learning something, I think, traditionally in this country, that would just be beyond the pale. The question is, does the momentary disruption of cell phone service constitute that kind of level of government interference with speech?
JOHNSON: So a body of law that seemed clear when applied to old technologies is still a little vague when it comes to new ones. Again: Policinski.
POLICINSKI: We're still arguing over how do we regulate content on television 70 years after it became a mass medium, so there's no guarantee we're going to settle this anytime quickly, I think.
JOHNSON: And as if to illustrate that point, the Federal Communications Commission, which regulates telecommunications networks, now says it's begun collecting information about the BART wireless shut down, and hearing from people about the concerns that it raised.
Carrie Johnson, NPR News, Washington.
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