Why You Should Think Very Seriously Before Expressing Political Views at Airport Security

As originally published in Forbes (May 22, 2011).

Think twice about expressing political views — including citing the Bill of Rights — the next time you go through airport security. That’s exactly what Aaron Tobey did, and he paid the price.

The facts of Tobey v. Napolitano (E.D. Va.) are allegedly as follows, as set forth in Tobey’s Complaint in the federal district court of the Eastern District of Virginia. On December 30, 2010, at the Richmond International Airport, Tobey, who was flying to Wisconsin for family matters, entered the airport’s security checkpoint. In anticipation of the possibility that he would be randomly selected for “enhanced secondary screening,” Tobey had written the following message prominently in black marker on his chest to state his objection to the enhanced second screening implemented by the Transportation Safety Administration (“TSA”), a division of the Department of Homeland Security: “AMENDMENT 4: THE RIGHT OF THE PEOPLE TO BE SECURE AGAINST UNREASONABLE SEARCHES AND SEIZURES SHALL NOT BE VIOLATED.” The Fourth Amendment states precisely:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

After being cleared by the airport’s pre-screening agent, Tobey proceeded with the protocol we all know well: he placed his belt, shoes, wallet, phone, computer, carry-on bag and sweatshirt on the conveyor belt. Upon reaching the second level of passenger screening, a TSA agent directed Plaintiff away from the magnetometer and toward a separate area. (I for one have also been so directed and have always been treated with the utmost respect, but Tobey’s experience seems to have been a bit different, and for a very particular reason.)  Before entering the separate area, Tobey removed his T-shirt and sweatpants and placed them on the conveyor belt. He had running shorts on underneath. As a result of disrobing partially, his message written in all caps was visible to the TSA agents and other persons present.

A TSA agent informed him that he did not need to remove his clothing, but Tobey responded that he wished to express his view that enhanced screening procedures are not constitutional. Tobey was then handcuffed with his hands behind his back and informed that he was being placed under arrest for allegedly “creating a public disturbance.”

Tobey’s adventure didn’t end there.  He was arrested and questioned in the airport police station. He allegedly was told that the questing officials “would make sure that he would have a permanent criminal record as a result of his actions.” They allegedly threatened to contact the police department of the University of Cincinnati, where Tobey is a student, to inform them that he had been arrested. Tobey’s Complaint alleges “upon information and belief” that the authorities did in fact contract the university.

And during questioning, he was allegedly informed

that by purchasing a ticket and commencing the screening procedure, he had surrendered his Fourth Amendment rights and consented to a search of his person.

Tobey was then questioned by a Federal Air Marshal, who allegedly asked him “about his affiliation with, or knowledge of, any terrorist organizations, if he had been asked to do what he did by any third party, and what his intentions and goals were.  He was then released into the terminal to go through security a second time.

He was a subsequently charged for having violated a Virginia law for having exhibited disorderly conduct (a Class I misdemeanor) in a public building with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating the risk thereof by “engag[ing] in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed.”

However, as Tobey’s Complaint establishes, that same law (statute) also provides that disorderly conduct

shall not be deemed to include the utterance or display of words.

Tobey sued on a number of grounds, including the assertion that

without probable cause to believe he had violated any law and in so doing deprived him of his right to be free of unreasonable searches and seizures and guaranteed by the Fourth Amendment to the United States Constitution.

Tobey seeks a judgment declaring that the TSA’s actions violated numerous constitutional rights, as well as damages.

Some Thoughts and My Biases

Airport security has changed since September 11, 2001, as we all know. I have often heard fellow travelers complain about lines and delays, and I think to myself: Not a chance. The more security the better. Does this require that we be searched thoroughly and reasonably? Absolutely. Do I have a problem with that? Absolutely not, as long as the searches are reasonable.

However, I have to take issue with the actions of the TSA here. Tobey expressed his views. He allegedly did so in a peaceful manner. He does not seem to have done so in manner meant to incite others. And the Virginia law under which he was charged exempts his form of expression — a display of words — from being considered criminal. Had I seen Tobey at that moment, I probably would have thought: You need a serious reality check, but good for you expressing your views. He and I certainly don’t have to agree.

However, again, on the flip side . . . I think it’s important to realize that the words themselves that are expressed can’t be viewed in isolation. Context is extremely important when it comes to analyzing the reasonableness of actions.

Was Tobey’s display reasonable?  I think so; you may feel otherwise.

But what if — in the context of airport security — a passenger who similarly wants to express his views writes on his chest the following words from the Second Amendment:

[T]he right of the people to keep and bear Arms, shall not be infringed.

Is that reasonable in that context — an airport?

That’s where I personally begin to tread very very lightly — not because of the words, but rather because in that context, I would immediately fear for travelers’ safety, including my own.

So how do courts resolve the government’s ability to restrict our actions? They establish litmus tests. They define reasonableness. And they think through carefully the carve outs (such as the one in the Virginia law) that may not make sense in all contexts.

This isn’t easy work. But for now, the task has landed within the jurisdiction of the federal district court of the Eastern District of Virginia — and then likely the U.S. Court of Appeals for the Fourth Circuit no matter which side prevails — both of which courts may have plenty more to consider (and define) than “just” the case before them.