I’m glad that the Christmas in August event took place as planned without any arrests http://tinyurl.com/27quh4.
If you played any role in that, I want to thank you.

I appreciate your invitation to address BART’s Board of Directors at its next meeting. However, I respectfully decline to do so.

Nevertheless, I probably will write Mr. James Fang, Esq., who is the only director who is a lawyer, concerning the free speech permits. I will courtesy copy BART’s Office of General Counsel and the other directors.

Frankly, it should be the duty of BART’s Legal Counsel, and not me, to advise the Board on this issue, perhaps by having a conference with the Board’s Planning, Public Affairs, Access, and Legislation Committee.

It has been twenty years since the Supreme Court decided Board of Airport Commissioners v. Jews for Jesus, 482
U.S. 569, a case which supports the proposition that BART cannot ban all expressive conduct in its Paid areas.

As the Ninth Circuit held in LSO, Ltd. v. Stroh (9th Cir. 2000) 205 F.3d 1146, 1160, officials are not entitled to qualified immunity when “no reasonable official could have believed” that application of the statute at issue was constitutional in light of prior controlling judicial decisions. Certainly, this would apply to a BART director who is a lawyer who is made aware of the Jews for Jesus decision.

Similarly, in Toole v. Superior Court, 140 Cal.App.4th 488 (2006), the state appellate court held that officials who are enforcing an unconstitutional free speech permitting scheme are entitled to state law qualified immunity, provided that they acted in good faith and without malice.

Again, I would think that it would be rather doubtful that a director who is an attorney who is made aware of a controlling case like Jews for Jesus could be said to be acting in good faith if he acquiesced to BART’s continued enforcement of an egregiously unconstitutional permitting scheme.

Sincerely,

David

http://www.bart.gov/textOnly/about/bod/bodMembersDetail_316.asp

First of all, I just want to say that I routinely deal with local, state and federal agency personnel and I think that Laughsquid readers should know that it is extremely rare to come upon an agency employee such as yourself who is so open and accessible and willing to engage the public in the manner in which you have done. And on a Sunday, no less. I’m impressed. Thank you.

As for my slamming BART, please don’t take it personally. I’m cognizant that you are a policy follower, and not a policy maker.

Now, as for my allegedly saying that you were the head of BART, I don’t think that’s precisely what I said. I’ll let the readers here judge for themselves what I wrote as soon as it is approved by the censors here for posting:)

I’d like to explain in detail Monday when I’ve had some rest why I feel BART, and in particular, its Office of General Counsel, so richly deserves to be slammed.

I can’t possibly believe that any BART attorney did any kind of conscientious due diligence to see if BART’s rulemaking comported with clearly established First Amendment case law.
.
It’s one thing when a private actor such as the SFShenanigans engage in shenanigans with the law; it’s quite another thing when an administrative agency, such as BART, engages in shenanigans with law, especially when it’s the Constitution.

Shame on you, BART.

David

I’m not usually this snide, but pushing it off on the board and saying “hey, I don’t give the orders, I just follow them” just feels a little insulting.

If he really believes in free speech and thinks we’re right, he’d listen and help, perhaps even going to the board himself (since he’s way closer to them and as a high ranking BART employee would have their ears).

Instead he hides behind the rules, behind the bureaucratic structure and pushes the whole thing back. Depressing that it is so typical.

–Linton Johnson

Thank you for getting back to me today. I am adding the following comments
to my earlier e-mail:

Because BART’s rules unambiguously mean what they say they mean, to wit,
that “no person shall engage in . . . expressive activities in the Paid
Areas,” I cannot hold my “Ask Me Why Linton Johnson Should be Head of BART”
sign in the Paid area without risking criminal sanction.

Even if I were to concede that the PAID areas may be classified as
non-public fora and that BART may be performing a “proprietary” function,
the fact that BART makes its Free areas available to me with a permit (or
even without a permit) will not serve to rescues BART’s permitting scheme
from being facially unconstitutional.

Merely providing an “alternative place” to engage in expressive conduct, is
not by itself, sufficient to justify a total ban on any form of expressive
activity, because such restrictions do not pass the test for reasonableness.

See, for example, the Board of Airport Commissioners v. Jews for Jesus, 482
U.S. 569 (1987) case I cited early today, and other similar cases, such as
International Society For Krishna Consciousness v. Lee, 505 U.S. 672 (1992),
in which the Supreme Court said:

For these reasons, the Port Authority’s restrictions on solicitation and
leafletting within the airport terminals do not qualify for the strict
scrutiny that applies to restriction of speech in public fora. That airports
are not public fora, however, does not mean that the government can restrict
speech in whatever way it likes.

“The Government, even when acting in its proprietary capacity, does not
enjoy absolute freedom from First Amendment constraints.” Kokinda, supra, at
725 (plurality opinion).

For example, in Board of Airport Comm’rs of Los Angeles v. Jews for Jesus,
Inc., 482 U.S. 569, 96 L. Ed. 2d 500, 107 S. Ct. 2568 (1987), we unanimously
struck down a regulation that prohibited “all First Amendment activities” in
the Los Angeles International Airport (LAX) without even reaching the
question whether airports were public fora. Id., at 574-575.

We found it “obvious that such a ban cannot be justified even if LAX were a
nonpublic forum because no conceivable governmental interest would justify
such an absolute prohibition of speech.” Id., at 575. Moreover, we have
consistently stated that restrictions on speech in nonpublic fora are valid
only if they are “reasonable” and “not an effort to suppress [*5]
expression merely because public officials oppose the speaker’s view.”
Perry, supra, at 46; see also Kokinda, supra, at 731; Cornelius, supra, at
800; Lehman v. Shaker Heights, 418 U.S. 298, 303, 41 L. Ed. 2d 770, 94 S.
Ct. 2714 (1974).

The determination that airports are not public fora thus only begins our
inquiry. As the District Court recognized, the logical consequence of the
Port Authority’s congestion argument is that the crowded streets and
sidewalks of major cities cannot be public forums. 721 F. Supp. at 578.
These problems have been dealt with in the past, and in other settings,
through proper time, place, and manner restrictions; and the Port Authority
does not make any showing that similar regulations would not be effective in
its airports.
- – - – - – -
In Kuba v. 1-A Agricultural Ass’n, 387 F.3d 850 (9th Cir. 2004), the U.S.
Court of Appeals held that notwithstanding the governments legitimate
interest in peventing congestion, restricting speech to designated “free
expression zones” was unconstitutional. The Court explained that under
California’s Liberty of Speech Clause, ‘the public forum’ doctrine is not
limited to traditional public forums such as streets, sidewalks, and parks
or to sites dedicated to communicative activity such as municipal theaters.
Rather, the test under California law is whether the communicative activity
is basically incompatible with the normal activity of a particular place at
a particular time.Carreras, 768 F.2d at 1045 (internal quotation marks
omitted).”

Let me suggest that there are expressive activities which may be compatible
with the normal activity of a the Paid areas.

I am appending to this message a copy of the NYC Transit Authority’s rules
for expressive activities within the paid areas of its system, which is much
larger than the BART system. Unlike BART’s total ban on expressive conduct
in Paid areas, these rules try to reasonably accommodate expressive
activities as well as take into consideration the governments legitimate
interest in safety and preventing congestion.

EXHIBIT A

New York City Transit Rules of Conduct, 21 NYCRR Part 1050.

21 NYCRR § 1050.6

Use of the transit system.

Except as expressly permitted in this subdivision, no person shall engage in
any nontransit uses upon any facility or conveyance. Nontransit uses are
noncommercial activities that are not directly related to the use of a
facility or conveyance for transportation. The following nontransit uses are
permitted by the Authority, provided they do not impede transit activities
and they are conducted in accordance with these rules: public speaking;
campaigning; leafletting or distribution of written noncommercial materials;
activities intended to encourage and facilitate voter registration; artistic
performances, including the acceptance of donations; solicitation for
religious or political causes; solicitation for charities that:

(1) have been licensed for any public solicitation within the preceding 12
months by the Commissioner of Social Services of the City of New York under
section 21-111 of the Administrative Code of the City of New York or any
successor provision;
(2) are duly registered as charitable organizations with the Attorney
General of New York under section 172 of the New York Executive Law or any
successor provision; or,

(3) are exempt from Federal income tax under section 501(c)(3) of the United
States Internal Revenue Code or any successor provision. Solicitors for such
charities shall provide, upon request, evidence that such charity meets one
of the preceding qualifications.

(1) Permitted nontransit uses may be conducted in the transit system except:

(A) when on or within: a subway car; an omnibus; or, any area not generally
open to the public;

(B) within a distance of 25 feet of a station booth, or a fare media sales
device including but not limited to a fare media vending machine; or,

(C) within a distance of 50 feet from the marked entrance to an Authority
office or tower.

(D) The following activities are not subject to the minimum distance
requirements as set forth in subparagraphs (B) and (C) of this paragraph:
public speaking; leafletting or distribution of written noncommercial
materials; campaigning; and, activities intended to encourage and facilitate
voter registration, provided, that with respect to any of the activities
described in this subparagraph, no sound production device is used and no
physical obstruction, such as a table or other object, is present within a
distance of 25 feet of a station booth or fare media sales device, or 50
feet from the marked entrance to an Authority office or tower.

(2) Notwithstanding any other provision of this section, any activity in a
location which interferes with the access onto or off of an escalator,
stairway or elevator, or otherwise interferes with or impedes transit
services or the movement of passengers, is prohibited.

(3) No activity permitted by the authorization contained in this section
shall be conducted on a subway platform where construction, renovation or
maintenance work is underway on or near the platform, or on or near the
staircases, escalators, or elevators leading to such platform and including
any such work in or near track areas.

(4) No activity is permitted which creates excessive noise or which emits
noise that interferes with transit operations. The emission of any sound in
excess of 85 dBA on the A weighted scale measured at five feet from the
source of the sound or 70 dBA measured at two feet from a station booth is
excessive noise and is prohibited. Notwithstanding any other provision of
this section, the use on subway platforms of amplification devices of any
kind, electronic or otherwise, is prohibited.

(5) No person shall use media devices such as films, slides or videotapes.

(6) Where an activity permitted by the authorization contained in this
section includes the use of a sound production device, no person shall begin
or continue the use of such sound production device during any announcement
made over the public address system or by a New York City police officer or
by an Authority employee.

(7) No person shall misrepresent through words, signs, leaflets, attire or
otherwise such person’s affiliation with or lack of affiliation with or
support by any organization, group, entity or cause, including any
affiliation with or support by the Authority or the Metropolitan
Transportation Authority or any of their programs, such as Music Under New
York or Arts for Transit.

(8) Any person using the transit system for nontransit activities permitted
pursuant to this rule does so at his or her own risk, and the Authority
assumes no liability by the grant of this authorization.

Source: http://www.mta.info/nyct/rules/rules.htm#use

This is the same authoritarian transportation agency that thought it would be a good idea to bring in pot-sniffing dogs onto the trains just to make sure everyone was on the straight and narrow. Safety, my ass.

Greetings Mr. Johnson:

Kudos to you for making a sincere effort to reach out and articulate
your agency’s policy on permits. I enjoyed reading your comments at
http://laughingsquid.com/sfshenanigans-host-Christmas-in-august-on-bart
concerning BART’s refusal to allow this event to take place today.

I appreciate the fact that you consulted with your agency’s counsel
concerning the constitutionality of the Rules of the San Francisco Bay Area
Rapid Transit District Pertaining to Use of District Facilities for
Expressive Activities (rev. 10/24/05) (hereinafter “BART’s rules”).

I’m also in complete agreement with you that in any permitting scheme
that the government’s legitimate interest in ensuring safety is paramount.

Unfortunately, because BART’s rules impose a complete and unconditional
ban on any form of expressive activity whatsoever, including planned and
spontaneous expression by single persons and groups of persons within the
paid areas without regard to whether or not they impact safety,.they are
hopelessly overbroad. Hence, BART’s rules are unconstitutional.

According to paragraph 1 of BART’s rules, “[n]o person shall conduct
or participate in assemblies or demonstrations, distribute written pamphlets
or other materials, gather petition signatures or register voters, or engage
in other expressive activities in the Paid Areas of BART Stations, including
BART cars and trains and BART Station platforms.”

BART’s rules are not unlike the resolution at bar in Board of Airport
Commissioners v. Jews for Jesus, 482 U.S. 569 (1987). It stated, “NOW,
THEREFORE, BE IT RESOLVED by the Board of Airport Commissioners that the
Central Terminal Area at Los Angeles International Airport is not open for
First Amendment activities by any individual and/or entity.”

In striking down this resolution, the Supreme Court held:

The resolution does not merely regulate expressive activity in the
Central Terminal Area that might create problems such as congestion or the
disruption of the activities of those who use LAX . . . The resolution
therefore does not merely reach the activity of respondents at LAX; it
prohibits even talking and reading, or the wearing of campaign buttons or
symbolic clothing. Under such a sweeping ban, virtually every individual who
enters LAX may be found to violate the resolution by engaging in some “First
Amendment activit[y].” We think it obvious that such a ban cannot be
justified even if LAX were a nonpublic forum because no conceivable
governmental interest would justify such an absolute prohibition of speech.

Another case which is on-point is American-Arab Anti-Discrimination
Committee v..Dearborn, 418 F.3d 600 (6th Cir. 2005). The U.S. Court of
Appeals stated:

Permit schemes and advance notice requirements that potentially apply to
small groups are nearly always overly broad and lack narrow tailoring. The
Ordinance is overly broad because under the Ordinance as written, any
procession of people with a common purpose or goal, whether it be a small
group of protestors or a group of senior citizens walking together to
religious services, are conceivably required to obtain a permit from the
city of Dearborn. See Burk v. Augusta-Richmond County, 365 F.3d 1247, 1259
(11th Cir. 2004) (Barkett, C.J., concurring) (finding public demonstrations
striking down an ordinance not narrowly tailored because it applied to
“small intimate groups”). There are myriad circumstances in which an
organized group travels on a public right of way with a common purpose or
goal. The language of the Ordinance applies the permit requirement to any
group of people traveling in such a manner on the public rights of way.
Grossman v. City of Portland, 33 F.3d 1200, 1206-07 (9th Cir. 1994).
Because the Ordinance would include almost any imaginable procession on
Dearborn’s streets or sidewalks, the Ordinance, as written, is hopelessly
overbroad.

Although it appears that BART’s rules were reviewed by both your current
legal counsel and your former General Counsel, Sherwood G. Wakeman, Esq., it
would not be unreasonable to conclude from reading their work product, i,e.,
the rules, that these attorneys were not adequately trained in First
Amendment jurisprudence.

In my view, no competent attorney would sign-off on such egregiously
ultra vires rules, because it is abundantly clear that they violate
well-settled law. .

In the 9th Circuit, the failure of agency to employ adequately trained
lawyer can amount to a “deliberate indifference to constitutional rights”
and may be justicable under 42 U.S.C. § 1983. Cf. Miranda v. Clark, 319
F.3d 465 (2003).

Regardless of whether this actionable, it goes without saying, however,
that under California’s Rules of Professional Conduct
http://tinyurl.com/2afomd, that an attorney mat be subject to discipline for
a violation of Rule 3-110, Failing to Act Competently.

In summary, the irony of this situation is that it is BART which has
shown an arrogant disregard for the law – the First Amendment.

Sincerely,

David

It is a group of people singing Christmas Carols. Not it’ll probably be quite a bit larger due to this and other discussions, but I really doubt it’ll get bigger than even 50 people (I’m thinking more like 25) and if that happened I’m sure it’d break up into smaller groups (more groups = more trains = more chances to spread the Christmas cheer).

This should not, and I believe does not require a permit of any kind, and the whole idea of calling something a “free speech permit” is a double-plus ungood example of the worst kind of doublespeak. The speech is free, or it isn’t. Requiring a safety permit for large groups is one thing, requiring one for any group or individual who wishes to exercise free speech is another.

I guess I said something after all.

Though the cases you cited seemed to be referring to gatherings in unconfined places where there would be little crush danger: town hall lawns and stuff. In the tight confines of the subway, arranging crowd-flow systems and the extra staff to manage them may take longer, i suppose.

I’m really impressed both by their willingness to work with you on this, and by their awareness that “free flow” == “public safety”.

In the UK we have had some cases where “free flow” disappeared, and people die. Nonfatal tube station crushes happen fairly often, so often it’s unremarkable, and actually hard to find accounts: http://www.lynnefeatherstone.org/column6.htm

They have a system in place at London Bridge station where they would stop people going through the gates once the platforms got full to a certain level: a great idea, but not implemented at all stations.

But it’s not just the UK: it’s worldwide. Managers would ne negligent if they allowed unmanaged crowds to gather and endanger the people they are meant to be caring for.

1964 Lima: 300 die in a stampede after goal disallowed, Olympic qualifying match.
1968 Buenos Aires: 74 die when a crowd stampeded after burning paper was thrown on to football terraces. Fans head towards a closed exit and are crushed against the doors.
1971 Glasgow: 66 die when barriers in Ibrox stadium collapse during football match.
1974 Cairo: 49 trampled to death as crowds break barriers.
1979 Lagos: 24 die as Nigerian football fans stampede during a light failure.
1981 Piraeus: 24 die in a stampede as Greek fans rush to leave sports ground.
1981 Sheffield: 38 injured during a crowd surge at Hillsborough stadium.
1982 Moscow: 340 die at European Cup match when fans, leaving stadium, try to re-enter after last-minute goal.
1982 Cali, Columbia: 24 die when drunken sports fans provoke a stadium stampede.
1985 Mexico City: 10 die trying to force their way into a stadium.
1985 Brussels: 39 die at Heysel stadium when riots break out and a wall collapses.
1988 Kathmandu: 70 die in stampede towards locked sports-stadium exits in a hailstorm.
1989 Sheffield: 95 die, over 400 injured, in crowd surge when police open gates at Hillsborough football stadium to alleviate crowding.
1990 Mecca: 1,426 die in stampede in overcrowded pedestrian tunnel during the annual Haj pilgrimage.
1991 Orkney, South Africa: 40 die along fences when cricket fans try to escape fighting.
1993 Hong Kong: 21 die in crowd crush when thousands of new years’ party-goers were caught off-guard in narrow sloping streets in the Lan Kwai Fong disaster; poor police planning and bad weather played a part.
1994 Mecca: 270 pilgrims die in a stampede during “stoning the devil” ritual.
1996 Guatemala City: 83 die at a World Cup qualifying match.
1998 Mecca: 150 Muslim pilgrims crushed to death in a stampede.
1999 Kerala state, south India: 51 killed in a stampede after part of a shrine collapsed during Hindu ceremony attended by 1.5m.
1999 Minsk, Belarus: 53 die when a crowd of 2,500 rushed to get out of the rain at the railway station.

It’s not a new problem, either: the 1943 crush at Bethnal Green Underground Station (173 dead, 69 of whom were children) was the biggest death toll ever on the UK underground, including the 7/7 terrorist bombs and all tube crashes ever.

This is why, in disasters, the authorities avoid “causing panic” and ask that people “stay calm”. More people can die from the panic than the disaster.

So, flash crowds clearly kill. Do not fuck with crowds in small areas when you don’t know what you’re doing. If you’re going to have an internet-arranged event with an unknown number of people turning up, arrange it with the site owners, because they will know a hell of a lot more about the crowd dynamics there than you do.

Thank you Scott, and thank you community, for all your wonderful support and attention!

The event is STILL ON!

For clarification’s sake, the original intent was to just gather the people up on the platform, and then ride the trains fairly incognito, and to pretend there was a spontaneous outbreak of carol-singing… (Our previous events were gathering only 5 – 10 people at a time…) This is all up for change at the last minute, depending on our size, etc…

*IF* the cops do stop us, we will quickly re-locate above ground, or to some other spot.

*PLEASE* if you are approached by a police officer, please cooperate with them!

We’ve had some cool interactions with the SFPD at past events, and I would like to continue that precedent. (Besides, they aren’t the ones making the screwy laws, they just have the crappy job of enforcing them…)

Thanks for all your support!

- Agent TheBeast