Kiki Lopez, left, and Tony Martinez play jazz inside the 16th Street Mission BART station. (Kevin N. Hume/S.F. Examiner)

BART: busking ban on trains may be legal despite opposition, free speech concerns

When BART board director Debora Allen first floated her proposal to ban panhandling and other solicitation on BART trains and in stations, it immediately met with opposition.

The American Civil Liberties Union Northern California fired off an email to BART pointing out that it had filed a lawsuit against a similar Sacramento ordinance, alleging it threatened free speech.

The email seemed to be an implicit threat of litigation from the ACLU.

Now, Allen and BART are essentially saying no sweat — a ban on buskers playing music for cash and other panhandling on trains is perfectly legal, they said.

BART staff will present their findings to the BART Board of Directors on Thursday, after researching similar busking and panhandling bans across the country.

They found enough legal wiggle room to make Allen’s ban a reality, meaning that turf dancing on BART trains could soon be at an end.

“It’s time to bring order, respect and a greater sense of safety to our transit environment at BART,” Allen said in a statement. “Only then will we see our lost ridership return to choosing transit over cars.”

BART staff found there’s a legal difference between public spaces where speech can influence groups or decisions, like a City Hall board chamber or in a town square, versus public spaces where “operations” occur, like a train, or the paid area of a transit station.

At BART, that means busking and panhandling may be restricted on trains, station platforms, and in paid portions of the stations, but allowed in plazas, at entrances, near ticket machines and in other parts of stations that aren’t behind paid gates.

That is, if Allen moves forward with a proposal. The board won’t vote on a plan Thursday, but the research presented may put wind in Allen’s sails.

“I wasn’t the first one to think of this,” Allen said.

New York, LA, DC, Atlanta, and Chicago all have ordinances against some type of solicitation for money, according to a BART staff presentation, mostly aboard trains.

“People come to San Francisco from all over the world and they are shocked by what they see on our transit system,” Allen said.

Allen’s proposal has already earned detractors on the BART Board of Directors, including BART director Janice Li, who represents San Francisco.

“I can’t see a world where I would support a straight-up ban,” Li told the Examiner in August, when Allen first proposed it.

She added, “I feel like it continues the trajectory of sanitizing the culture of San Francisco and the Bay. We’ve already displaced the arts, and now we’ll regulate it to death? No thanks.”

And as for the warning from the ACLU, Allen and BART staff argued that its legal argument against Sacramento wouldn’t hold up against a busking ban in a non-public forum, like a BART train, as long as that ban were “viewpoint neutral,” and busking and panhandling continue to be allowed in non-paid BART areas.

joe@sfexaminer.com

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