Hypo #1: CCLU and No Justice No Peace v. C-BART

Questions of Counsel for Justices

Can the individuals associated with NJNP claim use of the fiber optic network deployed by C-BART?
Assuming a right to use of C-BART's fiber optic network, does that use encompass a First Amendment right?
Assuming a First Amendment right to use, into which of the recognized fora does the C-BART fiber optic network fall?
Based upon forum determined above, what level of scrutiny is appropriate in this case?
What are the concerns of C-BART that rise to the level of scrutiny required?
Was turning off the fiber optic network by C-BART time, place, and means appropriate?
Had C-BART not blocked the cell and WiFi service, but rather turned off the fiber network only, would the First Amendment rights of the petitioners have been affected?
Were the means of which NJNP availed themselves (face-to-face advocacy and handbills) sufficient to satisfy the First Amendment?

Addendum

This case involves three distinct networks: fiber optic, cell and WiFi. Members of NJNP seeking to use social media in C-BART stations would connect to either the cell network, the WiFi network, or both. The members' communications could be carried over fiber optic cables within and between stations or could transit immediately from the cell and WiFi networks within each station to the terrestrial, wired networks operated by the cell and WiFi service providers outside C-BART stations. In either case, the NJNP members would not connect directly to any fiber optic network. C-BART's blocking of the cell and WiFi networks was the cause of any and all impairment of NJNP members' First Amendment rights.

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.