Sunday, August 28, 2011

Public Internet Fora

Cross-posting my G+ post here, as it was blog-length. The First Circuit decision I reference is covered here.


I'd like to see a law student comment comparing the recent decision linked to below to the arguments in defense of BART's cell shutdown. Clearly the 1st Circuit feels the 1st Amendment protects the ability of a person to film and post police activity via cell phone in a public square. The means of posting for any near-term journalistic purpose is an internet connection.

Some things for the student to consider: does it matter that a cell shutdown delays, but doesn't permanently enjoin, the communication of the speech? Must the government have a security concern, or can they stop immediate broadcasting arbitrarily?

I'll jumpstart the comment by providing some early thoughts. What comes to mind for me is the doctrine of a semi-public or private forum's transformation into a public forum based upon access. We tend to think of this caselaw as being about physical grounds - the military base, when opened for 1 day for a public parade, becomes a public forum and folks can bring anti-military posters on the grounds for that day only.

Similarly, when the BART folks decided to create cell service in BART stations, they unintentionally made such stations a "public internet forum," if not a public physical forum. This is why we shouldn't conflate BART's ability, for safety reasons, to control protests in BART stations, with their ability to control the non-physical public forum created by internet access.

I'd thus like to propose that BART may be able to make a valid constitutional argument that the physical forum of a BART station can be closed for security reasons if viable alternative physical fora for speech are available. But they cannot constitutionally invoke a security-based argument for closing a public internet forum except in the most extreme of circumstances (ex. specific knowledge of a cell phone bomb trigger in the area). Once the government decides to provide internet access and create a public internet forum, an individual should have the right to invoke a right like the one seen the case below (use a cell phone to record officers in public), and not have the means of speech dissemination inhibited by the government. Closing the internet public forum and delaying the speech dissemination is unconstitutional except in instances of immediate, specific, and deadly security concerns. Physical-space-based concerns, such as overcrowding, simply aren't valid for public internet fora.

Now I need a law student to make my normative argument about public internet fora into something grounded in some actual cases beyond the one below. :) If someone does it, I'll look forward to reading it!

By the way, I also recommend my former boss Nicole Wong's thoughts on this matter.

Sunday, August 07, 2011

Google+ Invites

I'm posting a lot of nonsense there. If you'd like to join, but haven't received an invite, use this link and you'll get one.