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Free Speech

by Mike Masnick

Mon, Jan 28th 2013 9:34am

Filed Under:
1st amendment, 4th amendment, aaron tobey, detainment, free speech, tsa

Permalink.

Man Detained By TSA For Writing 4th Amendment On His Chest Wins 1st Amendment Argument In Court

from the surprised,-but-happy dept

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.

59 Comments | Leave a Comment

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Reader Comments (rss)

“

"Tobey�s antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect."

Umm - so terrorists are simply hanging about at airports, waiting for someone to walk through without his shirt so that they can spring into action?

And if Tobey hadn't done that, the terrorists would have just gone home??!?!

Forget becoming an appelate judge - how did that guy manage to dress himself in the morning?

—Anonymous Coward

”

(Flattened / Threaded)

Jason, Jan 28th, 2013 @ 9:57am

Circular logic WIN!
"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."

Your Honor, we had to harrass Mr. Tobey, not because of any wrongdoing but because his actions made have to leave our duties in order to go harrass him.

[ reply to this | link to this | view in thread ]
Michael, Jan 28th, 2013 @ 9:57am

Really?
a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would

The commotion caused by the TSA acting like jackasses is the fault of the guy who's rights they were violating because he should have known they would violate his rights. Nice.

I wonder if this judge would agree that it is his fault if we send SWAT to raid his house because his ruling is bizarre and it is ok that we do so because he should have known we would send SWAT after him for a crazy ruling and something bad could happen while SWAT is out arresting him that they may have possibly prevented.

[ reply to this | link to this | view in thread ]
Jason, Jan 28th, 2013 @ 9:58am

Re: Circular logic WIN!
*made us have tow

[ reply to this | link to this | view in thread ]
Jason, Jan 28th, 2013 @ 9:59am

Re: Re: Circular logic WIN!
damnit!

*made us have to

[ reply to this | link to this | view in thread ]
DannyB (profile), Jan 28th, 2013 @ 10:12am

What about 2nd ammendment?
I would defend that guy's right to keep bare arms.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 10:14am

Re: Really?
The logic would get Kim Dotcom send to USA:

"Kim Dotcom was responsible for disrupting activity and caused the need for a firm response from the kiwi police. USA responded as any US citizen would have hoped they did by demanding him extradited!"

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 10:17am

Just think...
How many people were able to use this diversion to sneak on their bottles of water? Throw the book at him!

[ reply to this | link to this | view in thread ]
That Anonymous Coward (profile), Jan 28th, 2013 @ 10:19am

The dissenting Judge should be removed from the bench.
Following the logic provided
we should not have cars... nefarious people might use them in bank robberies.
we should not have pants... nefarious people might use them to hide things.
we should not have children... nefarious people might do something to them.

Or we can just sign the Judge up for many flights so that the bench can have a first hand account of how stupid that response is... if unwilling we should have the Judge arrested for failing to allow his rights to be stomped underfoot.

[ reply to this | link to this | view in thread ]
MrWilson, Jan 28th, 2013 @ 10:23am

Re: Really?
It actually sounds like the cliche apologetic abused spouse: "It's my fault that he beats me because I make him angry."

If the TSA gets distracted by harmless people standing up for their rights, then...Oh, right. People standing up their rights aren't harmless. Only terrorists stand up for their rights. I remember now.

[ reply to this | link to this | view in thread ]
AB, Jan 28th, 2013 @ 10:31am

"But Tobey�s antics diverted defendants from their passenger-screening duties for a period"

Wow. So it is this judges official opinion that the TSA agents are so poorly trained and so unprofessional that they would be unable to keep their eyes off those exposed abbs long enough to carry on with their actual work. Be afraid, citizens, be very afraid.

[ reply to this | link to this | view in thread ]
Gracey (profile), Jan 28th, 2013 @ 10:32am

So following their train of thought -

: writing on his chest is bizarre? or,
: removing his shirt is bizarre? or both?

In either case, one has to wonder why they don't think that allowing the TSA agents to feel passenger's private parts isn't "bizarre".

[ reply to this | link to this | view in thread ]
Jeremy Lyman (profile), Jan 28th, 2013 @ 10:32am

Please post more signs
"Do not feed feed the TSA Agents."

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 10:33am

"Tobey�s antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect."

Umm - so terrorists are simply hanging about at airports, waiting for someone to walk through without his shirt so that they can spring into action?

And if Tobey hadn't done that, the terrorists would have just gone home??!?!

Forget becoming an appelate judge - how did that guy manage to dress himself in the morning?

[ reply to this | link to this | view in thread ]
McCrea (profile), Jan 28th, 2013 @ 10:34am

Odd man out
The judge who dissented should be detained for his own bizarre action.

[ reply to this | link to this | view in thread ]
Michael, Jan 28th, 2013 @ 10:35am

Re:
writing on his chest is bizarre

This must not have been in Green Bay during football season.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 10:38am

Maybe they just wanted to take those abs home, like those disappearing Ipads at TSA checkpoints.

[ reply to this | link to this | view in thread ]
Mr. Applegate, Jan 28th, 2013 @ 10:42am

The answer is simple
Remove the power of the TSA by not flying. When the airlines start complaining, the government will be forced to acquiesce and dispense with the TSA.

But there is no danger of that happening the sheep will continue to stand in line, because that is what they are expected to do.

(I haven't flown since 2003.)

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 10:48am

Re:
Simple - he paid John Steele to do it. Which explains his dissent.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 10:54am

Re: The answer is simple
No one will be building train lines anytime soon, so the airports have no competition to lose business to.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 11:00am

Re: The answer is simple
You realize that your entire protest plan is based on "sheep" not standing in line and simply not travelling.

Considering your disdain for them, this is fairly surprising.

Or perhaps all the money you're not spending on airline tickets is going directly to organizations that are out lobbying the politicians to fix this situation? No? Then no one is even listening to you. The only thing you've managed to accomplish is a self-enforced travel restriction.

BRAVO!

[ reply to this | link to this | view in thread ]
illusion2269 (profile), Jan 28th, 2013 @ 11:01am

Re:
The interesting question is whether or not this case would have been brought if he had the 4th amendment written on a shirt instead.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 11:06am

Why can't the judges use the exact same argument for the 4th amendment? In fact isn't it the amendment Franklin referred most to?

[ reply to this | link to this | view in thread ]
akp (profile), Jan 28th, 2013 @ 11:07am

Re: The answer is simple
Not so simple for everyone. Unfortunately, many people need to travel for business, and it's not reasonable for them to tell their bosses "Nah, I'll just take the train... See you in a week!"

Also, some of us live in Alaska or Hawaii... If we ever want to go on vacation, or even receive some kinds of medical care, we more or less have to fly.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 11:09am

did anyone else read "ambit" as "armpit"?

[ reply to this | link to this | view in thread ]
Aria Company (profile), Jan 28th, 2013 @ 11:11am

Okay, Techdirt. Where are those Fucking Eagle t-shirts again?

I feel like flying.

[ reply to this | link to this | view in thread ]
Michael, Jan 28th, 2013 @ 11:13am

Re:
Umm - so terrorists are simply hanging about at airports, waiting for someone to walk through without his shirt so that they can spring into action?

They might now. We need to purchase some kind of machine that will screen for it. Just like we did to find liquids and explosive shoes. Eventually the terrorists will try the same unsuccessful thing twice.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 11:16am

You do have different first amendment rights at an airport screening. Need to impugn the reputation of this judge just because you don't understand the law. Asshole.

[ reply to this | link to this | view in thread ]
Michael, Jan 28th, 2013 @ 11:17am

Re: The answer is simple
Remove the power of the TSA by not flying

Listen here pirate Applegate. You are taking food out of the mouths of TSA agents everywhere. Every non-flyer using some other form of transportation is clearly a "lost-fondling" opportunity and we need to charge you and Google a tax to pay the wages of these poor TSA agents before the pseudo-rape industry is destroyed by your actions.

[ reply to this | link to this | view in thread ]
Michael, Jan 28th, 2013 @ 11:19am

Re:
Did you forget a sarc-mark or something? I'm not sure if you are actually serious.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 11:32am

Re:
http://mob852.photobucket.com/albums/ab88/broadmoor74/what-if-im-not-sure-if-serious-or-trolling-thu mb.jpg

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 11:33am

Re: The answer is simple
Here we have a catch 22. The TSA currently has no competition and thus no incentive to improve. Boycotting flying could lead to privatization of airport security, which would most certainly lead to a better experience. However, getting to certain parts of the world (or country) is made significantly more inconvenient without the use of airplanes, making boycotting impossible for many.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 11:39am

Re: What about 2nd ammendment?
Would you give him an arm and a leg?

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 11:41am

That's OK Mr Tobey the President will just swoop in and claim Executive and or States Secrets privilege and all will be well again in TSA land

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 11:42am

Convincing argument!

[ reply to this | link to this | view in thread ]
Jason, Jan 28th, 2013 @ 11:53am

Re: Re:
No, according to Rule of Naked 101.101, naked is more interesting than shirt.

[ reply to this | link to this | view in thread ]
heyidiot (profile), Jan 28th, 2013 @ 11:56am

Stai zitto, schiavi!
Shut up, slaves!

[ reply to this | link to this | view in thread ]
DannyB (profile), Jan 28th, 2013 @ 12:00pm

Re:
Are you suggesting that the fondlers and pat-downers at the TSA may have detained Mr. Tobey for abs, er, I meant, reasons other than those stated?

[ reply to this | link to this | view in thread ]
Grady, Jan 28th, 2013 @ 12:07pm

I have to agree with the judge in that he should have done so elsewhere. He intentionally caused a commotion just to get attention. There was no need to for him to go that for at a checkpoint.

However, I applaud the courts pushing back against the TSA's over-reaching behavior, and for upholding an Amendment, which seems to be lacking across the board.

(I would have detained (used loosely) the individual if I was working the TSA gate, if only to question his mental state and purpose.)

[ reply to this | link to this | view in thread ]
greenzrx, Jan 28th, 2013 @ 12:20pm

How is this disruptive?
Perhaps i'm missing something. So a bare-chested guy with some writing goes through security. On his chest is an excerpt from the bill of rights. How is this a problem? how could it possibly have taken more than 1 TSA agent to realize that the prose on his chest wasn't threatening to the security of the airport, or his upcoming flight? It wasn't a bomb threat, nor a promise to hijack. What if it was written on a tee shirt, instead of his chest. would that have been okay?

I imagine that due to the popularity of tattoos, there are individuals on just about every flight that have some kind of writing on their bodies. OMG, the world is full of TERRORISTS!

[ reply to this | link to this | view in thread ]
That One Guy (profile), Jan 28th, 2013 @ 1:13pm

Re:
Umm, the whole point of a protest becomes moot if you don't cause a commotion of some sort, so I'd have to disagree.

[ reply to this | link to this | view in thread ]
That One Guy (profile), Jan 28th, 2013 @ 1:18pm

Re: How is this disruptive?
Unfortunately, these days in the US, the Constitution is considered a threat to those in power, TSA included, due to how often their actions are in direct violation of it.

You're right when you say it would have only taken one agent a few seconds to realize he wasn't posing a threat to the airport/airlines, but that wasn't the real reason they threw the book at him. What they were actually going after him for was the threat he posed to their authority.

[ reply to this | link to this | view in thread ]
That One Guy (profile), Jan 28th, 2013 @ 1:21pm

Re: Re: How is this disruptive?
*Constitution/Bill of Rights are considered threats to those in power, TSA included, due to how often their actions are in direct violation of them.

[ reply to this | link to this | view in thread ]
gorehound (profile), Jan 28th, 2013 @ 1:53pm

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).

More disruptive of the TSA is them Copping a feel of my Balls.

[ reply to this | link to this | view in thread ]
Reality Check, Jan 28th, 2013 @ 2:25pm

Re: The answer is simple
I don't always have a choice and sometimes have to fly, but since TSA security theater started, I have reduced how much I fly.

There are times where I choose to drive places instead of fly, and I always choose to drive over the current hassle of flying these days.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 28th, 2013 @ 2:57pm

Re: Re:
Did you forget a sarc-mark or something? I'm not sure if you are actually serious.

Do you think you can stand on a soap box and give a speech just the same whether you're in the park or at the security checkpoint at the airport? Of course the rules change depending on your location. Might want to google "time place manner restriction first amendment." Mike is delusional and frankly 100% wrong to suggest otherwise.

[ reply to this | link to this | view in thread ]
nasch (profile), Jan 28th, 2013 @ 3:10pm

Re: The answer is simple
When the airlines start complaining, the government will be forced to acquiesce and dispense with the TSA.

It would be much easier to just give the airlines a bailout. They're too big to fail ya know. Getting rid of the TSA means being "soft on terrorism" which doesn't play well with the voters at home.

[ reply to this | link to this | view in thread ]
nasch (profile), Jan 28th, 2013 @ 3:12pm

Re: Re: Re:
Do you think you can stand on a soap box and give a speech just the same whether you're in the park or at the security checkpoint at the airport?

Are you asking whether the TSA would have you arrested for it, or whether it's actually illegal? Because those are obviously very different questions.

[ reply to this | link to this | view in thread ]
DannyB (profile), Jan 28th, 2013 @ 3:17pm

Re: Re: What about 2nd ammendment?
No special treatment. Just the standard TSA patdown.

[ reply to this | link to this | view in thread ]
Bergman (profile), Jan 28th, 2013 @ 4:59pm

Re:
Touch a TSA agent in exactly the same places they just touched you, and go to jail for sexual assault.

[ reply to this | link to this | view in thread ]
Sharon, Jan 28th, 2013 @ 6:03pm

Re: The answer is simple
Exactly! I haven't flown since 2005, and if people are willing to put up with the TSA fiasco in the first place, then they should probably realize they have no rights in these concerns. If they stop flying, this transportation issue will cease to be a problem, right?

[ reply to this | link to this | view in thread ]
The Coach, Jan 28th, 2013 @ 6:11pm

Once again the general public is totally clueless regarding the work that terrorists regulary do in regards to screening checkpoints. NO IDEA.
How about next you walk right to the gate, no screening, no law enforcement, no security. Good luck

[ reply to this | link to this | view in thread ]
nasch (profile), Jan 28th, 2013 @ 6:32pm

Re:
Once again the general public is totally clueless regarding the work that terrorists regulary do in regards to screening checkpoints.

Well clue us in! What are terrorists regularly doing in US airports that we don't know about and you do?

[ reply to this | link to this | view in thread ]
Karl, Jan 28th, 2013 @ 9:02pm

Re: Re: Re:
So, no respect for the right to free speech. What a shocker.

[ reply to this | link to this | view in thread ]
Karl, Jan 28th, 2013 @ 9:06pm

Response to: gorehound on Jan 28th, 2013 @ 1:53pm
Copping a feel of my Balls.

Are you kidding? That's the only reason I ever take a plane.

[ reply to this | link to this | view in thread ]
MrWilson, Jan 28th, 2013 @ 9:23pm

Re: Re: Really?
In thinking about this more, this is what should have happened, ideally (in the scenario that the TSA still exists):

"Boss, this guy is topless and has the 4th Amendment written on his chest. Should we detain him?"

"Does he have any guns, knives, sharp objects, explosives, terrorist manifestos, or suicide notes?"

"No."

"Then let him get to his flight and keep a better look out for the people who are carrying those things!"

[ reply to this | link to this | view in thread ]
Anonymous Coward, Jan 29th, 2013 @ 5:12am

I bet the TSA wet themselves when the heard the court use the Franklin quote, considering their entire business model is removing liberty in exchange for promises of increased safety.

Maybe they'll pull a Prenda and claim that the court "obviously hates airport security"?

[ reply to this | link to this | view in thread ]
The Real Michael, Jan 29th, 2013 @ 6:03am

"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience." - C. S. Lewis

[ reply to this | link to this | view in thread ]
Niall (profile), Jan 29th, 2013 @ 8:35am

Re: Re: Re:
I notice that the appeals court failed to agree with your assessment. Maybe you're the delusional one?

[ reply to this | link to this | view in thread ]
robert Lang, Mar 20th, 2013 @ 10:15pm

Re: the fourth
The judgement wasn't over the seizure (4th violation) but more over retaliation over expressing your opinion (1st Admendment).

[ reply to this | link to this | view in thread ]

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Man Detained By TSA For Writing 4th Amendment On His Chest Wins 1st Amendment Argument In Court

from the surprised,-but-happy dept

Reader Comments (rss)

Circular logic WIN!

Really?

Re: Circular logic WIN!

Re: Re: Circular logic WIN!

What about 2nd ammendment?

Re: Really?

Just think...

Re: Really?

Please post more signs

Odd man out

Re:

The answer is simple

Re:

Re: The answer is simple

Re: The answer is simple

Re:

Re: The answer is simple

Re:

Re: The answer is simple

Re:

Re:

Re: The answer is simple

Re: What about 2nd ammendment?

Re: Re:

Stai zitto, schiavi!

Re:

How is this disruptive?

Re:

Re: How is this disruptive?

Re: Re: How is this disruptive?

Re: The answer is simple

Re: Re:

Re: The answer is simple

Re: Re: Re:

Re: Re: What about 2nd ammendment?

Re:

Re: The answer is simple

Re:

Re: Re: Re:

Response to: gorehound on Jan 28th, 2013 @ 1:53pm

Re: Re: Really?

Re: Re: Re:

Re: the fourth

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