One Perspective: Free speech vs. airport screenings

Scott Forsyth, The Daily Record Newswire

Let me tell you the true story of Aaron Tobey and his journey through the Richmond airport. He acted out a fantasy that many of us harbor. Whether he is to be praised or dismissed as a troublemaker I leave to you to decide.

Tobey is a college student. He was flying from Richmond to Wisconsin in 2010 to attend his grandfather’s funeral.

He passed through the initial screening done of all passengers. A TSA agent then randomly selected him for an enhanced screening, a full body scan.

Tobey believed the enhanced screening process to be unconstitutional. Anticipating his selection, he wrote on his chest the words of the Fourth Amendment prohibiting unreasonable searches and seizures.

Before entering the scan machine, Tobey calmly removed his sweatpants and T-shirt but not his shorts. Doing so revealed the words on his chest. The TSA agent attending the machine told him he did not have to remove his clothes. Tobey responded he did so to express his view the process was unconstitutional.

The agent summoned the Richmond police. Two officers arrived and immediately cuffed Tobey. They took him to the airport station and charged him with disorderly conduct in a public place, a misdemeanor.

The district attorney later dropped the charge. Tobey turned around and sued the TSA agents, the TSA, the police officers, and the Richmond police department for violating his civil rights. Principally, he alleged the defendants arrested him in retaliation for his speaking out on the subject of airport screenings.

The TSA agents moved to dismiss the suit against them, before any discovery. The trial court denied the motion with respect to the First Amendment claim, Tobey v. Napolitano, 808 F. Supp. 2d 830 (E.D. Va. 2011).

The agents appealed. On Jan. 25, the court of appeals affirmed in a decision that endorsed the First Amendment, Tobey v. Jones, No. 11-2230 (4th. Cir. 2013).

On the facts, Tobey had an advantage. The only document before the court was the complaint, which contained his version of what happened.

Reading the complaint most favorably to Tobey, the court held it did state a valid First Amendment claim. The words on his chest were protected speech, he took his clothes off to reveal the words, he told the agents why he was doing so, and immediately following his display of the statement the agents caused him to be seized. The seizure led to his arrest.
At trial Tobey will have to prove that “‘but for’ the protected expression the (agents) would not have taken the alleged retaliatory action,” Huang v. Bd. of Governors of Univ. of N.C., 902 F.3d 1134, 1140 (4th. Cir. 1990). For purposes of the motion to dismiss, the court inferred from the timing of the seizure a retaliatory motive.

The agents argued the government may impose reasonable restrictions on speech at an airport, since it is a nonpublic forum, citing International Society for Krishna Consciousness, Inc., v. Lee, 505 U.S. 672 (1992). Their actions were reasonable given Tobey’s “bizarre” and “disruptive” conduct.

The court responded the First Amendment protects bizarre behavior. Whether Tobey’s behavior was disruptive was a question of fact needing development through discovery.

The agents did not cite Tobey for violating any TSA regulation on screenings. In fact, he heeded all requests made of him.

The agents lastly argued they should be immune from suit, because Tobey’s right to protest during an airport screening was not clearly established at law.

Quite to the contrary, said the court. “A bedrock First Amendment principle is that citizens have the right to voice dissent from government policies.” “This principle transcends forums,” including airports.

According to the complaint, Tobey’s arrest lacked probable cause. “At a minimum ... it is unreasonable to effect (such) an arrest” “for displaying a silent, nondisruptive message of protest.” The agents had less drastic alternatives, such as turning away Tobey if he refused to redress. They were not entitled to immunity.

The court acknowledged airport security is a weighty interest post 9/11. However, this interest does not justify action that restricts the robust debate of public issues in a peaceful manner, the heart of the First Amendment.

A dissenting judge saw the situation in a different light. The agents’ call of the police was very reasonable given the “bizarre” behavior of Tobey. He could have been “a diversion that nefarious actors could have exploited to dangerous effect.”

Tobey’s case now heads to discovery. Here’s hoping he can prove his claim, turning an airport fantasy into a constitutional reality.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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