SAN FRANCISCO - OCTOBER 29: Commuters wait to board a Bay Area Rapid Transit (BART) train during rush hour on October 29, 2009 in San Francisco, California.
Initially, it seemed reasonable enough last Thursday when Bay Area Rapid Transit (BART) police shut off subterranean cell phone service on part of its transportation network to prevent communication between protesters who intended to disrupt service. But the public transit authority may have a huge public relations bill to pay as a result, which was not helped by the agency's director admitting proper channels were not followed in the shut down.
The scheduled protest was over a fatal shooting by BART police of a knife-wielding man about a month ago. More protests are planned this week. But now the efforts by BART to disrupt the protest have become as important, or possibly more important, than the original event, adding to the agency's increasingly tattered reputation for managing difficult situations.
At issue is the clash between the right of free speech and the necessity of law enforcement to protect the public order, never an easy line to straddle under any circumstances. Technology has intensified the issue with the ability of people to organize by cell phone, as we've seen around the world. The question is does law enforcement have the right to deny cell phone service to everyone -- or anyone -- as part of its effort to manage those opposed to its policies?
All of which leads back to Thursday's event. Were the protesters denied free speech with the cut off of service? Or were BART police simply acting properly to protect the public from a potentially ugly event? We know there's a point on the continuum of civility when excessive police management becomes repression. Does the BART police activity reach that threshold?
One fact is clear: this civil liberties issue is barreling down the track in the form of a lawsuit, with the issue most likely to land ultimately in the U.S. Supreme Court. Just like the Court has had to respond to technology-related issues such as electronic eaves dropping and Internet access for cable systems, the justices surely will have to come to terms with the proper role for law enforcement in controlling modern communications.
Of course, the framers never anticipated any of these concerns, which underscores the fundamental point that while the Constitution is the foundation of our governance, judges must grapple with how modern issues never imagined fit into that framework.