Can you hear me now?: CA silences phones to silence protests

Hosts: T. Greg Doucette & Latoya Love, with special guest Peter Romary of East Carolina University

*CAN THE GOVERNMENT LEGALLY SHUT DOWN YOUR MOBILE PHONE SERVICE TO PREVENT YOU FROM SPEAKING OUT?*

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

On 07/03/11, 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.

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” in response to the killing. BART officials cut off power to all phone towers from 4:00pm to 7:00pm in an attempt to thwart the alleged protest. In the process, everybody (including non-protestors) lost mobile phone service in BART stations.

[LEGAL ISSUES]
(1) Did the “credible information” obtained by BART, claiming a protest on 08/11/11, satisfy the 3-pronged test in Brandenburg v. Ohio for infringing upon speech rights?

(2) Even if the Brandenburg test was met, was cutting phone service still an unconstitutional prior restraint, particularly when BART recognizes portions of its stations are open for lawful protest?

(3) Even if the Brandenburg test was met, was cutting phone service for everyone (including non-protestors) an overbroad and unconstitutional restriction on protected First Amendment activity?