16 August 2011

Anonymous has a lot to learn about the First Amendment

Update 2 (1:15PM): This ars technica article estimated the number of protesters at 60, with an equal number of media. 
Update 1 (10:49AM): I made a comment in the original post below about crowd size. And YourAnonNews, one of the Anonymous press accounts, just made the following post:
#OpBART: a SF Anon said 200-300 protested, and he/she said that they only saw about 15 in Guy Fawkes masks.
My guess was "a few hundred." Anon deserves kudos for accurately representing the number of protesters (at least as much as I could tell). 
Yesterday evening in San Francisco, Anonymous held what was, by all accounts, a successful protest of BART (dubbed #OpBart). There were at least a few isolated incidents (people throwing stones at a train, and a report of a woman with a firearm), but neither of these could be positively attributed to the protest itself. If there were any arrests, they certainly weren't central to the event itself.

The protest was in response to a number of things, but most recently, the decision by BART to turn off cell service in a number of stations with the explicitly stated purpose of thwarting a prior planned protest. From my personal standpoint, I felt like it was unwarranted and asked whether the action constituted an unconstitutional prior restraint. I think it did. From a legal standpoint, IANAL, but this action was, in my opinion, "a very gray issue. Not as black and white as most would like." Still, at the least, very shady.

For about two hours I monitored #OpBart via Twitter, a live ABC News stream (with occasional live reporting), a BART radio scanner feed, and (rarely, when it was working) a ustream feed. I wasn't there (obviously), and I don't claim that the above knowledge gives me total understanding of the events that occurred, but I think these sources (altogether) provided a pretty clear picture.

The Good

From what I saw and heard, combined with news reports, the protest was entirely peaceful. I thought that someone (whether Anonymous or someone else, perhaps a bystander or commuter) might do something stupid which would provoke a more forceful police response, but I didn't see any such action. I said that I would be impressed if someone didn't do something stupid, so I'll stand by my word and say so. Also, I should make it clear at this point that Anonymous (or anyone for that matter) has every right to protest, and I fully support their right to do it. I also, generally speaking, support the reasons they're protesting.

I also thought in large part that the police handled things well. Despite some people suggesting that the BART police were heavy-handed (side note: Jake and I met in Poland a few years back and we agree on a lot of things and disagree on just as many!), I didn't see any evidence of that. And more importantly, I haven't seen any such evidence of police heavy-handedness from people who where actually there.

The Bad and the Ugly

Yesterday, prior to the protest, BART made a statement (I'm still looking for a link) that they had the right to limit free speech with time, place, and manner restrictions. This was met with incredulity that a government agency could actually limit free speech. The problem with this belief is that it is completely ignorant of First Amendment case law. Time, place and manner restrictions are well within the state's power in terms of limiting free speech. The courts require that these restrictions meet an intermediate level of scrutiny, which is to say that they must be content neutral, narrowly tailored, serve a significant government interest, and leave open ample alternate channels of communication. It's all well and fine if you understand this doctrine and simply disagree with it, but to be ignorant of the reality of First Amendment case law is pretty sad.

There seemed to be a pervasive belief that as long as the protest was peaceful, it was also lawful. Unfortunately for those in attendance, this simply isn't always true. I posted the following question on Twitter:
Is anyone willing to suggest that your free speech allows you to prevent other people from moving around as they please?
This is a purposely probing question to see if people understand that rights are not absolute. Free speech does not give you free reign to do whatever you want. The boundary of your rights exists where they begin to interfere with the rights of others. Commuters headed home from work have every right to move around freely. Mostly, they just want to go home. Unfortunately, several train stations were shut down at various times, preventing them from getting where they were going.

Now it's fair to suggest that it isn't entirely clear why the stations were closed. Did BART close them preemptively, or did the protesters actions force the hand of the BART police? The Civic Center station platform was filled with protesters who (at least according to news reports) tried to hold open the door to a train. In later instances, it appeared that BART police were acting proactively by closing stations before protesters arrived. So from my perspective, it seemed that both were the case. Eventually, the protestors at the Civic Center station were given an "unlawful assembly" announcement and either left on their own, or were more or less forced out of the station (it wasn't clear to me what exactly happened).

No matter how you draw it up, as a result of the protests, Anonymous disrupted public transportation and prevented some people from going about their day. This appears to have been entirely peaceful, and incurred no arrests, but that doesn't make it legal. What's sad is that Anonymous crude understanding of the First Amendment caused them to trample on other people's rights.

Overnight, I got the following reply:
@theprez98 Anonymous did not disrupt your BART experience, Anonymous did not close stations, Anonymous did not kill people.
Smart guy, I suppose! I wasn't in San Francisco so my BART experience wasn't disrupted (but I never claimed that I was). I didn't claim that Anonymous killed people, either. I think (and please, correct me if I am wrong) that this guy is basically saying: "If BART hadn't done what they'd done, we wouldn't have had to protest. Our actions were a reply to what BART did. So their action is responsible for the reaction." If this is in fact the point he's trying to make, it's a disturbing view: "We want the publicity for these actions, but not the responsibility for them." It lacks accountability, which seems to be the hallmark of Anonymous actions (especially when those actions are less than lawful).

Toward the end of the protest (at least in terms of when I was watching), a crowd of protesters (after walking around to and from four different train stations) converged at one of the entrances to the Embarcadero train station. The protestors basically blocked up the entrance. The actions here, and at other stations, led people to say that Anonymous had successfully completed their first "in real life" DDoS.

How ironic that when cell service was shut down, people complained loudly about free speech (and rightly so), but also about public safety and the ability (or inability) to use 911 when cell service was no longer available. Blocking the entrance to a train station is a public safety issue, no? Your question is: What if I needed to call 911 and cell service was off? Completely legitimate question. My question is: What if something happened in that train station and people needed to get out quickly? Your "IRL DDoS" might have prevented that. I think my question is just as legitimate.


The commuters that I saw that were interviewed by ABC News were either confused about the protest or were made that someone had disrupted their commute. I didn't see any sympathy from anyone who was interviewed. This is certainly too small of a sample to be of any scientific use, but at least anecdotally, the protest didn't seem to have much traction with BART riders.

How about crowd numbers? At any given time, I only saw maybe 50-100 people in the ABC News live camera shots. I recognize that there were several actions going on at once, so I'll give the protesters the benefit of the doubt, but I would estimate (again, roughly, based on my limited resources to monitor) that there were perhaps a few hundred protesters. Media, onlookers and police certainly added to those numbers. I'll be curious to see what Anonymous self reports in terms of participation.

Lastly, and more of a contextual comment than anything else. When protesters were blocking the train station entrance, some Anonymous folks on Twitter referred to it (reasonably, IMO) as a peaceful protest (again, keep in mind that peaceful does not always equal lawful). When the police (also reasonably) cleared protesters from blocking the station, police were "stormtroopers" taking an "aggressive stance." Context is important here, guys. If you want to be taken seriously, you're not going to win any friends with this sort of attitude. A similar situation occurred when protesters kept interrupting an ABC News reporter trying to make a report from the scene. It led the hosts in the studio to call the protesters "stupid" for killing coverage of their own protest.

Final Thoughts

Anonymous deserves credit for putting together a peaceful protest. I fully support their right to do so, and I support the reason they chose to do so. But their crude and sometimes ignorant understanding of the First Amendment is a very broad brush that can't seem to stay within the lines. They don't seem to mind or care, but every time they paint over the line, they're walking on someone else's rights.

I have some more ideas about this analogy in general, but I'll save them for a future post.  At this point I am more curious to see your thoughts. I welcome your comments, suggestions or critiques. If I got the facts wrong, call me on it (but back it up, too). Just don't be this guy.

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