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Maybe I could do a career in radio?

Posted by T. Greg Doucette on Nov 18, 2011 in The 3L Life

Good evening y’all, and welcome to the weekend! :D

Posting on law:/dev/null will be hit-or-miss until around December 9th or so — I’ve currently got 6 papers, 2.5 oral arguments, and an in-class final exam in the next 2 weeks alone, leaving me with almost no time to blog.1

Without the luxury of coming up with something new and pithy, I’ve taken the luxury of linking to a “Behind the Mic” webstream of an online radio show I hosted with my classmate Hahvahd2 on Wednesday for our ConLaw II class :)

Each week during the academic year, we host something call iSpeak Blog Radio talking about a variety of First Amendment-related topics. You can access the main website, including the archived shows, online at http://www.blogtalkradio.com/ispeak.

My topic was California’s Bay Area Rapid Transit (BART) shutting off all cell phone service within their subway stations, as a way of squelching an alleged protest that they claim was going to take place.3 We also brought in ECU’s Peter Romary4 to help give a lawyer’s perspective on the issues. Personally I think BART’s decision was shamelessly illegal and I’m a bit disappointed no one’s filed suit over it yet, but until someone does I decided to comment from my perch in the law school  :angel:

Before we get to the video, if you’re interested in the factual background and links for more info, here’s what I included in the Facebook event listing I cobbled together for the radio show:

[FACTUAL BACKGROUND]
The operators of California’s Bay Area Rapid Transit (BART) public transportation subway system pay mobile phone providers to offer mobile phone service throughout the Transbay Tube. Mobile transmitters/towers exist throughout the BART system providing cellular coverage. BART maintains physical control over the towers, including providing electrical power.

On July 3rd, 2011, BART police shot and killed Charles Hill at its Civic Center Station in San Francisco. Hill was a homeless man who was allegedly inebriated, and was reportedly armed with a bottle, two knives, and was “acting aggressively” toward police when he was killed. The official security camera video released by BART is inconclusive (the YouTube video can be seen at the link below).

This was the third fatal shooting by BART police in three years. The first, occurring in the early morning hours of New Year’s Day 2009, resulted after police arrested and handcuffed Oscar Grant for disorderly conduct at the Fruitvale Station in Oakland. While Grant was handcuffed and prostrate [face-down] on the ground, Officer Johannes Mehserle pulled out his revolver and shot Grant in the back. Grant later died for his injuries and Mehserle served 11 months in prison for involuntary manslaughter: Mehserle claimed in court he intended to pull his Taser instead.

Following Hill’s July 2011 death, the group “No Justice, No BART” organized a protest at several metro stations beginning at 4:30pm calling for BART to be disbanded and the officers who killed Hill to be criminally charged for yet another killing. As the crowd grew in size, some protestors attempted to prevent trains from departing and service was eventually disrupted. Several stations were closed entirely as a result of the protest.

A month later, BART claimed “[o]rganizers plann[ed] to disrupt BART service on August 11, 2011… us[ing] mobile devices to coordinate their disruptive activities and communicate about the location and number of BART Police.” BART officials cut off electricity to all mobile phone towers from 4:00pm to 7:00pm at four stations in an attempt to thwart the alleged protest. In the process, everybody (including non-protestors) lost mobile phone service in BART stations.

[LEGAL ISSUES PRESENTED]
==> Did the alleged “credible information” obtained by Bay Area Rapid Transit, claiming an impending August 11th protest, satisfy the 3-pronged test articulated by the Supreme Court in Brandenburg v. Ohio (intent / imminence / likelihood) for infringing upon speech rights?

==> Assuming arguendo the Brandenburg test was satisfied, was the BART decision to end mobile phone service nonetheless an unconstitutional prior restraint on speech, particularly when BART acknowledges portions of its stations are “free speech zones” for lawful protest?

==> Assuming arguendo the Brandenburg test was satisfied, was ending mobile phone service for everybody (including innocent commuters) an overbroad — and therefore unconstitutional — restriction on protected First Amendment activities?

[NEWS & RELATED SOURCES]
==> “BART Video: Civic Center Shooting,” YouTube.com, http://www.youtube.com/watch?v=fCVj-GIBu6k

==> “BART Police shooting of Oscar Grant,” Wikipedia.org, http://en.wikipedia.org/wiki/BART_Police_shooting_of_Oscar_Grant

==> “Oscar Grant Riots: 86 Arrested, Downtown Oakland Smashed,” SFWeekly.com, http://blogs.sfweekly.com/thesnitch/2010/07/oscar_grant_riots_86_arrested.php (07/09/2010)

==> “Latest BART Shooting Prompts New Discussion of Reforms,” New York Times, http://www.nytimes.com/2011/07/17/us/17bcbart.html (07/16/2011)

==> “BART Protest Shuts Down Several SF Stations,” KTVU.com, http://www.ktvu.com/news/news/bart-protest-shuts-down-several-sf-stations/nDb2w/ (07/11/2011)

==> “Statement on temporary wireless service interruption in select BART stations on Aug. 11,” Bay Area Rapid Transit, http://www.bart.gov/news/articles/2011/news20110812.aspx (08/12/11)

==> “BART Officials Blocked Cell Phones During Transit Protest,” CBS Sacramento, http://sacramento.cbslocal.com/2011/08/12/bart-officials-blocked-cell-phones-during-transit-protest/ (08/12/2011)

==> “A letter from BART to our customers,” Bay Area Rapid Transit, http://bart.gov/news/articles/2011/news20110820.aspx (08/20/2011)

==> “BART Pulls a Mubarak in San Francisco,” Electronic Frontier Foundation, https://www.eff.org/deeplinks/2011/08/bart-pulls-mubarak-san-francisco (08/12/2011)

==> “Cell Phone Censorship in San Francisco?,” American Civil Liberties Union, http://www.aclu.org/blog/free-speech/cell-phone-censorship-san-francisco (08/12/2011)

Now for the fun stuff!

If you just want to access the audio-only feed from the Blog Talk Radio website, go to http://www.blogtalkradio.com/ispeak/2011/11/16/can-you-hear-me-now-ca-silences-phones-to-silence-protests

But if you’re a visual learner like me, enjoy the video (and requisite facial expressions) below ;)

Have a great night y’all! :D

  1. And a heaping pile of regret for trying to be an overachiever academically :beatup: []
  2. New person added to the law:/dev/null pantheon, previously referenced indirectly (and so named) for being the partner to my SBA predecessor noted in this Site Stats entry. []
  3. Yes, you read that right — supposedly we do stuff like that here in America now? :crack: []
  4. Long-time law:/dev/null readers might recognize Peter from this entry mentioning his new blog, The True Verdict. []

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