I have a column up at the Prospect about the decision of the BART transit police to — in the ignoble tradition of the Alien and Sedition Acts — cut mobile access to passengers to suppress a protest against…the BART police:
On the first point, it’s hard to see how the regulations are reasonable even if the protest could turn violent. The policy was overbroad, targeting a large number of passengers who were not potential protesters but were relying on having access to mobile devices. On the other hand, it’s not even clear how effective the regulation would be should a legitimately dangerous violent protest emerge, since organizers outside of cars and platforms could still use their phones and other mobile devices, and passengers in cars and platforms who found their phones jammed could communicate verbally. Even if one accepts that the threats cited by the BART Police are real—in itself a highly dubious proposition—the draconian withdrawal of any wireless access was not reasonably tailored to meet the threat.
BART’s actions are even harder to defend with respect to the second criterion. The most disturbing aspect of this case is the fact that BART Police took an unprecedented action suppressing free speech with the object of preventing a protest against them. Given that there was no concrete evidence of any threat to passengers, it is hard to avoid the conclusion that far from being viewpoint-neutral, the decision to shut down cell-phone access was targeted at speech that the BART Police didn’t like. This is precisely why we require even otherwise valid restrictions on speech to be viewpoint-neutral; it strikes close to the heart of the First Amendment for state actors to be in the self-serving position of deciding what kinds of political speech are acceptable and which are not. Allowing BART Police to take unprecedented actions that effectively suppressed criticism of their own department would set an extremely bad precedent.
One suspects that this kind of thing will get worse before it gets better.