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Quick Hit: Did BART Violate Free Speech Rights?

I have scoured the internet and Westlaw in search of a definitive answer to this question.

I have found the answer and it is…….maybe.  The constitutional free speech protections embodied in the First Amendment are not absolute.  They are actually flexible and courts routinely allow them to be limited in certain situations.

Is one of those situations include BART’s actions?  Maybe.  Maybe not.  Factors in answering this question include: (1) where the speech is being made, (2) the danger the speech causes, and (3) whether the policy behind limiting the speech is facially neutral.

I read Justin Silverman’s take in a well written and seemingly well researched posting about it (which I referred to here).  In it, he presents arguments trumpeted those on the opposing sides without specifically drawing a conclusion.  This, I think, is appropriate.  This may eventually be decided by a court – but not before some monstrous briefs are written by both sides citing to every First Amendment Supreme Court case as justification.  Based on my limited knowledge of First Amendment law, I would guess that most courts would deem BART’s actions to be legally appropriate, if not morally troubling.

My non-legal take: In the end, while there may be some limited circumstances where cell phone service should be cut off, this was not certainly one of them.  It smacks of everything we, as a nation, stand against.

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