Thursday, August 18, 2011

"Free Speech" Stops San Francisco Trains

I often wonder what San Francisco would be like if it didn't have its large community of wingnuts wildly indignant about nearly everything. For one thing, rush hour commutes would be a lot faster and a great deal safer. Bay Area Rapid Transit (BART), which daily transports thousands of working people to and from their employment in The City, has been crippled at rush hour twice in the past week.

First, the background. A few weeks back, BART police shot and killed a knife-wielding man in one of the BART underground stations. That would have been good for a one column news report. But the knife-wielder was black. That immediately resulted in the "no justice, no peace" crowd demanding the heads of the BART officers involved in the shooting. Street demonstrations began to build amidst the usual cries of police brutality and racism. But when BART officials heard that the phenomenon of "flash mobs" was about to close the downtown stations, they turned off the grid that allowed cell communications in the BART underground stations.

The word to the potential mobs had partially gotten out before the cell communications shutdown, but the number of potential demonstrators was cut considerably, resulting in a fizzled first demonstration. BART had successfully thwarted a major demonstration which in its smaller manifestation had already started to turn violent. This initial "no justice, no peace" demonstration concentrated on the shooting incident, comparing it (entirely untruthfully) to the shooting of an unarmed and subdued young criminal on the Oakland side of the Bay over a year ago.

Recognizing that even San Franciscans, for all their pathological liberal guilt were not buying this "innocent victim" agenda to support rioting, the troublemakers and their allies decided to take a new tack. Where the first demonstration was designed to stir up racial resentment and anti-law enforcement hatred, the second and much larger demonstration on Monday revolved around BART's supposed suppression of free speech when it shut down the cell phone service. Interestingly, on the day of the second, bigger mob activity, BART did not shut down the underground cell grid. This was a result of all the hysterical negative publicity it received over the prior shutdown fomented by leftist organizations and the ubiquitous ACLU. Needless to say, the demonstrators drew a moral equivalence between BART's action and the complete communications shutdown used by Egyptian President Hosni Mubarak to squelch criticism of and demonstrations against his government.

The left must keep hatred alive, so when the "innocent victim" trope petered out, they had to find another cause to disrupt normal activity and set citizen against citizen. Knowing that most San Franciscans and all liberals are incapable of distinguishing between free speech and free rioting, they organized their functionally-illiterate gangs to trot out the First Amendment.

Did BART shut down cell communications which said "we must stop police brutality?" No. Did it shut down communications which said "we must convince our public officials that black victims are being killed because of their race?" No. Did it shut down communications which said "organize now to get your elected officials to change the murderous policies of the BART police?" No. They shut down communications when they said: "No justice, no peace. We are going to shut down the BART trains at rush hour, and stop the police and the white power structure from ignoring racism and violence against black folks. Join us in bringing the system to a crashing halt at the following BART stations this afternoon. Be prepared to push a few people around."

That is not a call for free speech or peaceable assembly. It's a call to disrupt civil law and order, prevent non-participants from going about their daily lives, shutting down a major public operation, with a strong hint of potential violence and harm to innocent bystanders. BART did exactly what it needed to do to keep the call to civil disturbance from going any farther. It turned off the grid.

Of course by the time of the Monday demonstrations, there was no need for the agitators to use the underground cell grid. They had a week to organize above-ground to get their mobs into the BART underground stations. And they succeeded rather well. Thousands of hard-working commuters who just wanted to get home to their families were prevented from doing so by walls of angry "free speech advocates." Holding up a sign promoting free speech is, indeed, free speech. Holding up that same sign while aggressively standing shoulder-to-shoulder with a mob while blocking train platforms is not free speech.

The whole mob was quite well-organized by this time. They first gathered at the Civic Center station, and effectively shut its operation down. Sensing the growing potential violence, the police (BART and SFPD) removed the demonstrators who then gathered outside. That meant one important hub was already unable to load and unload passengers. Once the station was effectively shut down, the growing mob then marched down east on Market Street, leaving skeleton demonstrations at Civic Center so it wouldn't re-open. By the time they were done, they had stopped all trains from picking up passengers at the four busiest downtown stations.

Shouting "no justice, no peace" and flashing the black power salute, the mob intimidated those who would have attempted to cross their lines and enter the stations. That inevitably led to the police blocking the entrances to the stations in order to prevent violence down in the four underground stations. But don't forget, the Monday demonstration was only tangentially about the alleged unjustified shooting. By now, it was about free speech. If you believe that, I have this really big orange bridge located in the same city that I'm wiling to sell you, cheap.

For the safety of the public, demonstrations are forbidden by law on platforms and trains in the underground portions of the BART system (which is a level below the MUNI underground city trains). If they follow simple rules for public demonstrations, these demonstrators are allowed absolute free speech rights on the surface, including each and every BART station.

The spokesman for the ACLU came up with this spurious logic: "Governments don't have to build parks, but once they do, they can't lock out speech they disagree with." Yeah, but if the demonstrators block access to the park, or prevent people from the use and enjoyment of the park, they can be removed. It's about the activity, not the speech. And there is still the issue of obtaining a pro forma demonstration permit. Individuals can do their thing as they choose, but groups must obtain the permit for the sake of the public. The permit cannot regulate the speech or its content, but it can determine the reasonableness of the time, place and manner of the demonstration. That is a rule which has consistently been upheld by the US Supreme Court.

In the case of "spontaneous demonstrations" in the underground stations, there has been a longstanding prohibition based on public safety. The cell phone cutoff did not interfere with the demonstrators' free speech rights, it merely inconvenienced them by requiring that they go outside to organize their permitless protests. The government has the right to limit free speech when the accompanying activity could reasonably be considered dangerous to the public ("compelling state interest" test).

BART's fear was not unfounded. A few years back, demonstrators in the underground clashed with counter-demonstrators, and a bystander was shoved onto the tracks of an oncoming train. No serious injury occurred, but it was narrowly avoided by quick BART personnel action. Flash mobs, regardless of their purpose, are not exempt from rules protecting the health and safety of other citizens. If you want to use your cell phone and social networking, don't expect to be able to use them to flout the law and create an inherently dangerous situation.

25 comments:

Joel Farnham said...

I agree LawHawk.

If an accident had occurred underground, I bet BART would have been held responsible.

The Riots in London were started because a hooligan was killed. The same could happen here. Although, I don't know if anyone would miss San Francisco should it go under. I do know I would miss the liberal lunatic fringe. They always are good for a belly laugh or two.

T-Rav said...

Stupid question--don't these protestors have anything else to do? Don't they have jobs to be at or something?

Tehachapi Tom said...

Hawk
It is always interesting when people try to extend a definition from a legal activity to an illegal one.
Why is it that the old standing rule was if you confront the police with force you are probably going to receive force in return? That return force is always guaranteed to be at a greater measure than yours and that is what was expected by the public.
Could you imagine the ACLU outcry if the shooting of Bonnie and Clyde were to happen in to days America?
The clown that was shot did not deserve any thing less.
Police officers like to go home after work just like everyone else. If that means they have to do something that they wouldn't do under different a circumstance then more power to them.
As for the cell system being disabled that has nothing to do with free speech. In my opinion,the cellular system of communications is not free. Secondly it is owned by non government entities who have the right to shut it off if they want to. For example you might be able to walk bare foot on a public street but if a restaurant refuses to serve you because you are not wearing shoes that is their right.
Of course since it is San Francisco I'm surprised they didn't have a few school buses full of third graders there to make a larger crowd.

AndrewPrice said...

I think it's ridiculous for them to call this a free speech issue. Of course they will do that, but it's ridiculous. BART has no obligation to give them wi-fi. And rioting is not protected free speech.

Tam said...

Does Clear and Present Danger ring a bell? Yelling "Fire!" in a crowded theater? Anyone? Anyone?

Bunch of a-holes.

LawHawkRFD said...

Joel: Riots frequently start small, with incidents like the knife-wielder. The Watts riots of legend started with a driver resisting arrest for drunk driving. The incident has to be contained, and wielding a deadly weapon allows for the use of deadly force (even if it isn't required by law). Cops have to make quick decisions.

But unlike the spontaneous Watts riots, these agitators were organizing and planning to disrupt the orderly workings of society in a place where demonstrations were forbidden, to protest a police action that could just as easily and even more visibly have been done on the surface. That's not free speech, it's intentional disturbance of the peace.

LawHawkRFD said...

T-Rav: As so often happens, most of the trouble-makers were the permanently unemployed, the race-baiters, the "community organizers," and the pampered students who don't have a clue what life is about. Add to that the "youth" who want nothing more than the excitement of destroying private and public property, and you have the makings of a full-blown riot.

LawHawkRFD said...

Tehachapi Tom: LOL The third-graders would have been the smartest people at the demonstration, and if it had progressed to the riot that was intended, they would have done the least damage. But when some of the third-graders inevitably got hurt in the scuffle, the professional leftists would have declared that the "fascists" were mowing down women and children.

LawHawkRFD said...

Andrew: I loved their argument in which they admit that BART didn't have to provide wi-fi, but once they did, they had an obligation to keep it going even in the face of a potential riot and injury to innocent bystanders. It's utterly ridiculous, but that doesn't stop the anti-law and order crowd. The ACLU has backed off on its threat to sue, but we both know where there's a frivolous lawsuit, there's a lawyer.

LawHawkRFD said...

Tam: The clear and present danger test is right on the money in this situation. The demonstrators demanded to violate the law against demonstrations in the underground stations. The law was written precisely because large confrontational crowds in such small places, with high-speed trains running within inches of the crowds, are inherently dangerous.

LawHawkRFD said...

Tam: To expand on your comment, the "compelling state interest" in protecting the health and safety of its citizens is the justification for the statutory ban on demonstrations in the underground stations. The "clear and present danger" test relates to speech designed to produce immediate unlawful activity. Together, they comprise a statutory prohibition with a constitutional test of whether the prohibition itself is lawful. The statutory prohibition on demonstrations in the underground has been upheld before. The use of cell phones and social media to create a "flash mob" creates the "immediate danger" contained in the clear and present danger test. Nothing is more "immediate" than instant communications.

Think of it this way. Demonstrators wielding bullhorns and picket signs outside city hall proclaiming "if the police don't stop shooting innocent black victims in the BART stations, we should shut down the BART trains until they do" is NOT a clear and present danger. It's a "conditional threat" without the likelihood of immediate unlawful action. In other words, it's free speech.

But if the protestors use cell phones and social media to set a near-future date and time for disobeying the law and endangering the public such as "at 4:00 PM, we must all enter the BART underground stations to shut BART down," you now have a constitutionally forbidden clear and present danger.

The best example of this whole line of thinking were the arrests of communist demonstrators in the 50s and 60s who advocated the overthrow of the American government by force and violence. The Supreme Court held, and rightfully so, that this did not comprise a clear and present danger, since it was political advocacy without immediate effect. Had those same demonstrators had cell phones and said "meet us with your guns and bombs in the Capitol Rotunda at 4 PM today," the clear and present danger test would have kicked in. Arrests for inciting to riot would have been perfectly constitutional, and armed Capitol police shooting communists entering the Capitol Rotunda at 4 PM would also have been completely justified. Fortunately, they didn't have cell phones and FaceBook back then.

Tam said...

Right, and thanks.

BevfromNYC said...

For now the NYC subway system does not have cell or WiFi service underground and this is a good reason why they shouldn't. Once the city and MTA allow cell/wifi service underground, they will be held constitutionally responsible if they shut it down for the same reason. And since Al Sharpton lives here, you can bet that HE will be the first one to stage the demonstation.

LawHawkRFD said...

Tam: It's the constitutional law instructor in me. I tend to explain when nobody has asked me to. LOL

Tam said...

No, really...I appreciate the logic, reason, and LEGAL explanation of things I get on a much more superficial level.

LawHawkRFD said...

Bev: It's probably not for want of trying. Your underground system is bigger than San Francisco's by quantum leaps. BART in San Francisco has only the four downtown underground stations (Muni has a few more), and in the rest of The City it's above-ground or so far away from activity hubs that the demonstrations wouldn't have much effect.

That's probably a blessing for New Yorkers. No question in my mind that you're right about Al Sharpton. Once that grid is installed, he'd demand it be left on if all of New York City were going up in flames.

BART was the first major urban transit system to install the wireless access amenities, starting with downtown in 2004. It now includes the entire TransBay Tube which goes under San Francisco Bay into Oakland and the East Bay.

LawHawkRFD said...

Tam: Thanks. I'm glad it was helpful. I tend to get blank looks from my grandkids when they ask for an extra popsicle and I lecture them on their lack of a constitutional right to have a second popsicle.

Tam said...

Just take a bite out of the second popsicle and call it the "Grandpa Tax." That's what my parents do. I think it discourages asking for seconds...

LawHawkRFD said...

Tam: Excellent suggestion! I'll try it today.

T-Rav said...

Speaking of riots and Al Sharpton, I was just reading a story yesterday about the Crown Heights riots in Brooklyn, which were 20 years ago this month. I knew the "Reverend" was a demagogue and a race-baiter, but the facts of the incident are just hideous, especially as they apply to him. And now this man has his own show on MSNBC. What are we, Europe?

LawHawkRFD said...

T-Rav: Us old folks remember it very well. Sharpton stopped just short of ordering a "hit." As far as I'm concerned, he was quite simply complicit in a murder. Get those dirty Jews out of our neighborhoods by any means necessary. It was a direct call to exactly the kind of violence that resulted. If a direct link to just one of those murderers could have been established, Sharpton could have been charged with incitement to riot and felony murder. That link was never established, so the race-baiting s.o.b. hid behind the First Amendment.

Joel Farnham said...

I saw that LawHawk. Did you see that Homeland Security has new PSA videos out? White Americans are to be scrutinized very closely. They want to make sure all suspicious activity by whites is reported, especially if they are well dressed.

LawHawkRFD said...

Joel: It just keeps getting worse and worse. The Obama administration isn't even trying to disguise its contempt for white people anymore. All their propaganda is anti-American, anti-capitalist, and anti-white, no matter how its framed in Washingtonese.

StanH said...

Things have gotten beyond reasonable with the malcontents in this country, their color be damned. After fifty years of The Great Society, I am bored with this crap, and it’s getting past time to get tough with these ungrateful bastards, whether they be black, white, brown, yellow or red. The only way to rid our land of this blight, is cut them off, whether that be by politics, or a drastic collapse of the system. We must attack the entitlement mentality, and once again humiliate people living in the social safety (hammock) net, and begin to call them the bums that they are. If they had jobs perhaps they wouldn’t have time to hassle productive America. And the Tea Party are the terrorist…sheesh.

LawHawkRFD said...

Stan: Something's definitely gotta give. This idea that every time the police kill a dangerous scumbag we have to haul out the ACLU and its distorted version of the Constitution to get big bucks for the family's money-grubbing family and big publicity for the race-baiters and poverty pimps must end. It's time to start enforcing the rules about frivolous lawsuits. And I remind everyone that the police are supposed to be immune from good faith mistakes made during the performance of their duties. In retrospect, maybe there was a better way to deal with a knife-wielding man threatening commuters, but maybe there wasn't. It's not the job of the police to risk their lives and the lives of others while making their decision to use or not use deadly force.

I also agree that entitlement and coddling of the terminally lazy is only made worse when society promises them rewards for their bad behavior, or if they're lucky, the death of a close relative who was exhibiting the bad behavior. Except for limited and egregious cases, sovereign immunity must be reestablished, and the tort claims acts revised.

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