Aaron Tobey wins case against the TSAJanuary 30th, 2013
The TSA is a natural target for political demonstrations. Their invasive sexual molestation is unpopular with everyone, and their checkpoints come ready made with a captive audience. In 2010 Aaron Tobey was handcuffed and held for 90 minutes by the TSA at the Richmond Airport in Virginia after he stripped off his shirt to display the Fourth Amendment scrawled across his chest with a marker.
The 4th U.S. Circuit Court of Appeals ruled 2-1 and reversed a lower court judge. According to the opinion by Judge Roger Gregory:
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.
While it’s great to see the First Amendment is still in effect in an airport, I think Tobey was hoping to have the Fourth Amendment protected, after all the admonition from old Ben Frank is just as applicable.
In the lawsuit Tobey claimed wrongful detention and a breach of the First Amendment and Fourth Amendment. According to the suit, while under interrogation, the authorities wanted to know “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.” Of course “terrorist” is State speak for “We’ll violate your rights whenever we want.”
In a dissenting opinion, Judge J. Harvie Wilkinson wrote:
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.
If we are to believe old Ben Frank, Judge Wilkinson deserves neither liberty nor safety apparently. He imagines that dangerous terrorists are lurking around every security checkpoint waiting to exploit the antics of anyone braver than him. His assertion that the TSA agents responded as any passenger would hope they would is patently false. I wonder if he would be willing to take a poll. I for one would rather the interaction went something like this:
TSA: “OPT OUT! WE’VE GOT AN OPT OUT! … step over here.” Pointing.
Tobey: Takes off his shirt.
TSA: “What’s that?” Squinting. ”Some kind of tattoo?”
Tobey: “No. It’s the Fourth Amendment to the US Constitution.”
TSA: “Really?” Reading. “I mean, I’ve sworn to uphold it, but I’ve never actually read it.”
Tobey: “Well, maybe you should.”
TSA: Finishes reading. “This can’t be right. It says you’re protected from unreasonable searches and seizures, but that’s what I do all day everyday. And let me tell you, I make pretty decent money selling the stuff I seize. Are you sure that’s the US Constitution?”
TSA: “Well… This changes everything… You’ve really got me conflicted here… I guess that’s it then. Go on through.” Swings open the cattle gate.
Tobey: “Are you sure? Isn’t searching me your job?”
TSA: “Well, I thought so, but if it’s in the Constitution, I guess not searching you is my job too.”
The two men shake hands and part company as friends.
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