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New BART protests could test emerging policy on cell service shutdowns

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Still, the controversy over BART's decision to cut cell service on Aug. 11 continues to unfold. In response to pressure, BART held a three-hour hearing on Aug. 24 in an effort to craft a formal public policy that walks the line between protecting citizen safety and unfairly stifling free speech.

BART board president Bob Franklin asked his staff for a policy that reflected the concerns of the American Civil Liberties Union and other First Amendment advocates that would allow for a disruption of cell service only if there is “an extreme case when our passengers are imminently at risk,” according to the Los Angeles Times.
But defining “imminent risk” is a challenge, scholars say.

“I think the key words to watch here are ‘might be,’” says Paul Levinson, a communications historian and First Amendment expert at Fordham University.

“Whereas a terrorist attack in action is a legitimate reason to cut off communications because lives are clearly at stake, a potential crime – no matter how logical that may seem – is not a good enough reason and is clearly a violation.”

Mr. Levinson says legal minds agree that when there is a "clear and present danger" to life, limb, or property, that the government not only has a right but a responsibility to do all in its power to stop it, including limiting communications. The line is included in the US Supreme Court's 1919 so called "Clear and Present Danger" decision, which is generally accepted as a limitation on the First Amendment.

But Levinson and others feel that the limitation is dangerous, because it can be misused to stop speech and press that doesn't really present an immediate danger, or to stop the communication of citizens who are not posing a danger to anyone.

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