Is it speech?

The First Amendment right to freedom of speech sits at the top of our honor roll of constitutional rights.  It is clear that the founders believed in the right of political speech and protest.  And, due to Court precedents, the right of free speech also includes the right to freedom of expression.  The boundaries of these rights were clearly tested during the civil rights era in cases like Cox v. Louisiana 379 U.S. 563 (1965), Adderley v. Florida 385 U.S. 39 (1966), and Hess v. Indiana 414 U.S. 105 (1973), among others.   In each of these cases, the government’s action suppressing speech was justified by a public safety interest, and for the most part during the Civil Rights Era, the public safety interest fell short of trumping the right of free speech.  After all, Cox’s call to “Take the street again…” was only as loud and pervasive as his voice.  The Court refused to allow peace officers to censure speech based upon a possible future illegal activity.  However, in Adderly, Justice Black was clear.  Although the speech in question was political, even political speech could be limited if the timing, place, and/or manner of that speech threatened public order and safety.  For Justice Black and the Court majority, the Florida statute limiting such activities around the egress and exits of a jail was a reasonable restriction under what would become known as the “time, place, and manner” doctrine.

Flash forward to 2011.  Communications technology has erupted and instant communication is now possible between smart phones and social media platforms.   On August 15, 2011 the BART officials shut down all cellular transmissions in their underground routes between the San Francisco airport and downtown.  Why?  There was a threat of a mass demonstration organized via Twitter and Facebook.  Indeed, these types of “flash mobs” have wreaked havoc in London this summer as well.  These flash mobs are utilized to gather quickly individuals for protest, riot, and looting (at least as reported in London).

Immediately after the BART shutdown of cellular transmissions, there was a large backlash centered on the freedom of speech.  The argument made was that city or state officials cannot simply shut down cellular communications to inhibit potential criminal activity.  The claim is clearly reminiscent of the arguments presented to the justices during the Civil Rights Era.  And the response by the officials from San Francisco was also similar—“This wasn’t about free speech.  It was about safety.”[1]

In this question, it would seem easy to rely on previous precedent and either cite Cox and condemn the actions of the officials or cite Adderly.  Cox clearly establishes that a possible future illegal act is not sufficient for the censorship of speech.[2]  In following Adderly, the Court can note that the underground platform of a subway station is not a public venue typically used for free speech demonstrations.  The safety issues are clear—limited egress, fast moving trains, deadly electricity running through the lines, limited capacity for large numbers of people, inhibiting others from entering or exiting the trains.  Which interest weighs more heavily here?

However, there may be a more humble question underlying these issues.  Is it speech?  Do cellular transmissions, Facebook posts, and Twitter feeds constitute speech?  Are they always speech?  Do I have a right to post my current “status” at any time or in any place I choose?   These formats are dubbed social media, and while we certainly have examples of Facebook as a tool for revolution (e.g. Arab Spring), it is not at its core a political venue or tool; neither is Twitter.  Do we need to step back and take stock, as we did in the Civil Rights Era to determine what is and is not speech or expression before we jump headlong into the balancing of individual rights versus public safety?

And even if these electronic communications constitute speech, are they the kinds of political speech that would be entitled to the highest levels of constitutional protection, or are they instead more akin to other forms of speech (e.g., commercial) that receive lower levels of protection?  Unless a city or business offers free internet access, the only way to achieve this ‘speech’ is through a contract with a cellular company.  As concern grows over the potential for social media as a tool for crowd action, political or not, it is likely that the justices will be wrestling with these questions in the future.

[1] Deputy Police Chief Benson Fairow quoted by the Associated Press. last accessed on August 29, 2011.

[2] The recent history of flash mobs causing significant violence, and reported use of this methodology by street gangs to arrange public rioting and looting begs the question of whether this potential illegal activity compared to a nonviolent Civil Rights protest in the 1960’s would lead the current Court to a different outcome.  Additionally, the reach of cellular technology and social media platforms raises the specter of larger crowds with much less time for preparation by city officials or peach officers.   Would the current Court use these facts to distinguish the current flash mob protests from the venerable Civil Rights Era protests?

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Filed under Freedom of Speech, Assembly, and Association

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