By Mike Masnick, Techdirt. – January 28, 2013 at 12:34PM
Nearly two years ago, we wrote about how Aaron Tobey was suing the US government after he was detained by the TSA for trying to go through airport security without his shirt on, but with a paraphrased version of the 4th Amendment on his chest:
At the time, I figured his case had little chance of succeeding. For reasons that don’t make much sense, the courts have given the TSA an amazing amount of deference as long as they keep claiming something along the lines of “but we’re all going to die!!!!!!” before defending any and every action to violate our basic privacy rights. However, it turns out I was wrong. Because, you see, the 4th Amendment might not matter any more, but the First Amendment is still important. And the court saw this as a clear attack on his attempt to speak freely:
Here, Mr. Tobey engaged in a silent, peaceful protest using the text of our Constitution—he was well within the ambit of First Amendment protections. And while it is tempting to hold that First Amendment rights should acquiesce to national security in this instance, our Forefather Benjamin Franklin warned against such a temptation by opining that those ‘who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.’ We take heed of his warning and are therefore unwilling to relinquish our First Amendment protections—even in an airport.
The ruling hit back on the claims by the TSA that the detention made sense because Tobbey’s actions were “bizarre.”
Appellants contend that Mr. Tobey has not pled a cognizable First Amendment claim because their actions were “reasonable” given Mr. Tobey’s “bizarre” and “disruptive”
conduct….Even conceding that Mr. Tobey’s behavior was “bizarre,”
bizarre behavior alone cannot be enough to effectuate an
arrest. If Appellants caused Mr. Tobey’s arrest solely due to
his “bizarre” behavior, Appellants’ cannot be said to have
acted reasonably. This is especially the case given that the
First Amendment protects bizarre behavior
The court also pushes back on the claims of “disruption,” noting that the TSA seems to say that removing clothes itself is disruptive, but the court points out that there’s an awful lot of clothing removal that happens at TSA checkpoints, so it is not obviously disruptive (though it leaves open the possibility of more evidence of disruptive behavior by Tobey).
This was an appeals court panel, overturning a lower court decision against him. It’s worth noting that the panel (a standard 3 judge panel) included one dissenter, who bizarrely and ridiculously argued that, not only do you give up your First Amendment rights at the airport, you do so because the TSA needs you to shut up so it can find the real terrorists. I’m not joking:
Had this protest been launched somewhere other than in the security-screening area, we would have a much different case. But Tobey’s antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would, summoning local law enforcement to remove Tobey—and the distraction he was creating — from the scene.
How does one become a judge at the appellate level when arguing that you have different free speech rights during airport passenger screening because you shouldn’t distract the TSA agents? That’s quite an incredible statement.
Either way, the case still has a long way to go. This part just sends it back to the lower court to permit the case to move forward on First Amendment grounds.
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