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ACLU may sue BART over busking/panhandling ban

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Contentious policy, while not yet in effect, draws legal fire

Two musicians playing violins in a BART Station. Photo by Dennis Mojado

The American Civil Liberties Union (ACLU) of Northern California tells BART that it believes a proposal to ban panhandlers and buskers from the transit system is unconstitutional and warns not to go forward with the hypothetical new the rule, which has not yet been officially introduced at the BART Board of Directors.

In a letter published Thursday by ACLU lawyer Abre’ Conner to BART directors, Conner said that panhandling qualifies as free speech and that BART, as a government body, can’t quash riders’ rights.

Conner cites a ruling in a similar California suit from 2018:

Last year, the ACLU Foundation of Northern California and Legal Services of Northern California won a preliminary injunction in the Eastern District of California because the City of Sacramento intended to restrict solicitation, including panhandling, in various places across the City.

[...] We have concerns when a government entity plans to restrict fundamental free speech rights and make it illegal to panhandle or busk. Indeed, the Ninth Circuit ruled “[i]t is beyond dispute that solicitation is a form of expression entitled to the same constitutional protections as traditional speech.”

That litigation in Sacramento remains ongoing.

In the 2014 case of McLaughlin vs Lowell in Massachusetts, a federal judge specifically ruled that there’s a constitutional right to ask for donations in public, even finding that “an aggressive, perhaps disconcerting and indeed frightening” manner when soliciting money is protected speech if it doesn’t break any other laws.

The legal ire stems from BART Director Debora Allen, who this week promised that she will introduce a new proposal at Thursday’s BART board meeting to crack down on panhandling on trains and in stations.

As initially phrased, Allen’s plan would also bar buskers from BART, including the dance crews who work on trains and musicians playing in stations.

Since Allen has not yet formally introduced the new rule and it hasn’t gone through the process of formalization and debate at the board—which would take months at minimum—it’s difficult to parse the particulars of how such a policy might work.

But Conner is confident that any such notion would cross legal lines, warning directors, “Does BART want to take the stance that an individual will shed their constitutional protections once they enter the station? I hope the answer is no.”

In January, the latest BART customer satisfaction survey found that the popularity of the region-wide system cratered, down 13 percent year over year.

The most common rider complaints were a perceived lack of cleanliness on trains, worries about crime, and gripes about crowding.

Only one rider comment specifically cited panhandlers and none complained about buskers, but several customers whose complaints the survey quoted said there were “too many homeless people” on BART.