18 August 2011

In re Hoffman and the limits of protesting in a train station

The Anonymous protest at BART train stations last week was sitting on top of some pretty nice case law. Namely, In re Hoffman [67 Cal. 2d 845], a California Supreme Court case from 1967. Fifteen protesters were arrested for loitering; specifically, for handing out leaflets opposing the Vietnam War in Union Station in Los Angeles, which at the time was privately owned. The Court likened the train station, despite being privately owned, to a public street or park. As a result, the writ was granted and those arrested were freed.

Generally speaking, the BART protest is even more clear, since BART is a public, governmental agency. The jump from private property to public space doesn't even have to be made.

But the Court also made an important distinction about the protester's activities:
...the test is not whether petitioners' use of the station was a railway use but whether it interfered with that use. No interest of the city in the functioning of the station as a transportation terminal was infringed.petitioners' conduct was also unassailable under statutes aimed at protecting the city's interest in preserving good order, cleanliness, public health, and safety. Nor did their presence violate any legitimate interest of the railroads, their patrons, or employees. It invaded no right of privacy...
Nor was there any other interest that would justify prohibiting petitioners' activities. Those activities in no way interfered with the use of the station. They did not impede the movement of passengers or trains, distract or interfere with the railroad employees' conduct of their business, block access to ticket windows, transportation facilities or other business legitimately on the premises.petitioners were not noisy, they created no disturbance, and did not harass patrons who did not wish to hear what they had to say.
In short:
Had petitioners in any way interfered with the conduct of the railroad business, they could legitimately have been asked to leave... Similarly, had petitioners' activities conflicted with any valid municipal interest, the municipality could have proceeded against them.
Not to belabor the point, but as I stated in my previous post, protesters allegedly (at least according to news reports) tried to hold open the door to a train at the Civic Center Station to prevent it from leaving. Additionally, their self-described "DDoS" attack on the stations blocked access, interfered with railroad business, and raised public safety issues (this last point being quite ironic given the reason for the protest). These two actions, at the least, are not protected by the First Amendment.
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