Free Speech in Pleasanton's Virtual Town Square

BART's shutdown of wireless service last month in response to a planned protest—and the ensuing public backlash—underscored just how essential wireless access has become to our daily lives. Nearly 50 million of us carry smartphones, and we do so because we want to access the full range of ideas and information available on the Internet not just at home or the office but also when we're out and about. And we have the constitutional right to do so when the government sets up a communications service: the First Amendment applies online just like it does offline.

The same goes for cities like Pleasanton that join the growing ranks of municipalities that have established a free public Wi-Fi network in its downtown area. Pleasanton's goal was to promote its civic center by making it more attractive to wander in and through the city's parks and streets. The reality today is that our actual town squares are much more appealing if we can access our virtual town square at the same time.

But when Pleasanton set up its public Wi-Fi network, it required public users signing onto the network to agree not to access any sites "promoting or involving gambling, sexually explicit material, or illegal activity." The restriction meant, for example, that websites discussing civil disobedience, medical marijuana, and casinos on Indian reservations would all be off limits. This effort to cordon off certain areas of the Internet—based on topics the City thought inappropriate—undermined the City's goal of providing the public with greater access to ideas.

In addition to being bad policy, the restriction was just plain unconstitutional. The First Amendment protects our right to speak and to receive ideas. The government doesn't get to choose what topics we discuss or read about. And that's just as true in a virtual town square as in a traditional town square.

After the ACLU of Northern California contacted the City, Pleasanton immediately removed the restriction. Now Pleasanton has joined Portland and other cities that have recognized that free speech must flow on both our actual and our virtual town squares.

Linda Lye is a staff attorney with the ACLU of Northern California.