This court is called upon to decide the issue:
Did C-BART's actions in turning off its fiber optic network violate petitioner's rights under the First Amendment of the United States Constitution?"
C-BART, having become aware of the planned activities of NJNP at 9:00 am the same day, turned off its underground fiber optic network and blocked all cell and WiFi service in C-BART stations. The order in which C-BART these actions were taken has not been established in the record provided by the trial court.
The individuals assembled did not receive the intended communications/instructions from NJNP at 11:05 am. Lacking instructions as to how to proceed, some individuals associated with NJNP gathered at the entrances to the C-BART train stations where they exhorted passersby to "Take Back America from its corporate overlords." Other individuals boarded trains and passed out literature to passengers.
The Columbiana Civil Liberties Union (CCLU) filed in federal district court, on behalf of NJNP President Charles Chaos and NJNP. The suit against C-BART alleged that C-BART's actions on August 11th, 2019, violated the First Amendment rights of NJNP members. The suit sought both unspecified monetary damages and temporary and permanent injunction "limiting C-BART's discretion in shutting off its fiber optic network." (Note: CCLU and NJNP did not file suit regarding the blocking of the cell and WiFi networks.)
The suit was dismissed by the United District Court of the District of Columbiana for failure to state a claim on which relief could be granted. The decision of the district court was affirmed by the Court of Appeals for the Thirteenth Circuit. Petitioners filed a petition for certiorari. Petition was granted and writ of certiorari issued.
C-BART has deployed a fiber optic network interconnecting its train stations with each other and with C-BART's monitoring and traffic control facilities. In addition, the fiber optic network carries information for display on the electronic sign boards in C-BART train stations and for voice announcements via speakers installed in the stations. These are the primary and principal purposes of the C-BART fiber optic network.
C-BART may lease data transmission capacity in its fiber optic network to cell and WiFi service providers for the operation of their network's within C-BART train stations. [3] The leased data transmission capacity may transit distinct physical fiber from C-BART's operational network. Such as case would allow C-BART to maintain it's operations while turning off the leased data transmission capability. Such leases do not grant a proprietary interest or guarantee of use to individuals contracting with the leasee cell and WiFi service providers. [4] As a result, C-BART's fiber optic network is a government agency owned facility operated in a proprietary capacity. Moreover, "The Government's ownership of property does not automatically open that property to the public." United States v. Kokinda 497 US 725 (1990). Therefore, strict scrutiny of constitutional issues is not applicable in this case.
The "Government, even when acting in its proprietary capacity, does not enjoy absolute freedom from First Amendment constraints, as does a private business, but its action is valid in these circumstances unless it is unreasonable, or, as was said in Lehman v. City of Shaker Heights, 418 U. S. 298 (1974), "arbitrary, capricious, or invidious." Id. at 725f.
C-BART turned off its fiber optic network and blocked both cell and WiFi service in stations, approximately two hours before the scheduled arrival of NJNP members. The stated reasons for these actions was an apprehension that a number of individuals assembled at the train stations likely would engage in unlawful behavior of disrupting train service and possibly damaging public property. In support of this contention, C-BART referred to events in London, eight years prior, in which the actions in London "were amplified by groups using social media networks and phones to coordinate looting and arson." [5] "Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid, provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Clark v. Commun. for Nonviolence, 468 U.S. 288 (1984).
Given the reasonable apprehension of C-BART administrators, combined with the desire to maintain train service, blocking the cell and WiFi service in C-BART stations was appropriate in time, place, and manner. The actions taken were expected to prevent amplification of events via social media transmitted over cell and WiFi service. The timing was limited to the hours immediately surrounding the event in question. The place, physical extent, was limited to C-BART train stations. The manner, or method used, was sufficient to the purpose without being disruptive of primary purpose and use of C-BART, that being the operation of trains to provide public transportation. The court record does not show any impairment of C-BART's ability to met its core business purpose was unaffected by the actions taken by C-BART in this instance.
The plaintiffs pray that this court finds C-BART's turning off of its fiber optic network to have unconstitutionally impaired the plaintiffs' First Amendment rights. In order for this to be the case, the plaintiffs' First Amendment rights must depend upon the operation of C-BARTS fiber optic network. The plaintiff has failed to show such a dependency. Therefore, the plantiff has failed to make a claim for which relief may be granted. [See addendum] This court need not reach the question presented by the plaintiff Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936) Brandeis, J., concurring.
It is so ordered.
Rights of way, be they at surface level, overhead, or underground have particular economic value in an urban environment. Such rights of way allow cell phone companies to purchase/lease use of a portion of the right of way from the beneficial owner, C-BART in this instance, to run fiber optic cable without having to trench city infrastructure for the purpose of burying fiber optic cable.
In considering this case and the role of the fiber optic network, the most likely scenario is: the local cell service provider has entered into a long-term lease of existing C-BART rights of way to install conduit and run fiber within that conduit. C-BART, rather than installing its own fiber, entered into a long-term contract for capacity on the fiber network installed by the local cell service provider. C-BART uses this fiber for data communications related to train monitoring, signal operation, station sign board messages, voice for station announcements, voice communications to and from station operators, among other uses.
It is likely that the local cell service provider has entered into a long-term lease of space in existing C-BART stations to place cell network antennas to provide cell service inside the stations. The local cell service provider may also be the local WiFi provider in these stations. Another item not revealed in the trial court record.
Upon blocking cell and WiFi service, NJNP members' ability to communicate was severely degraded, returning these individuals to the conditions that existed before the deployment of cell and WiFi networks. (Note: first cellular phone network was deployed in the United States by Ameritech in March 1983, fifteen years after C-BART was established.) Under these conditions, NJNP members used the traditional First Amendment methods of face-to-face speech and handbilling to communicate their message.
Turning off the fiber optic network would no have any further effect on the First Amendment rights of the NJNP members once cell and WiFi service had been blocked.
Therefore, the claim of CCLU and NJNP regarding the turning off of the fiber optic network is misdirected. The claim should have been directed at the blocking of cell and WiFi service. It was that blocking that impaired the communications of NJNP members.