Thursday, July 25, 2013

The College Student Charged with Disorderly Conduct for Displaying the Words of the United States Constitution

On December 30, 2010, Aaron Tobey, a 21-year-old college student, was set to fly from Richmond, Virginia to his grandfather's funeral in Wisconsin.

Aaron believed that the Transportation Security Administration’s enhanced airport screening procedures, which produced near-naked, full-bodied images of passengers, violated the Fourth Amendment's prohibition against unreasonable searches and seizures, and he wanted to protest them. He had a hunch he might be randomly selected for enhanced secondary screening at the airport, so before he left home, he took a black marker and wrote words on his chest that he thought would be an apt protest.

Sure enough, Aaron was selected for secondary screening, so he stripped down to his running shorts to reveal the message he had written on his chest.

The message he had written was not a terrorist threat. It wasn't an obscene comment. It wasn't a call for violence.

It was the Fourth Amendment of the United States Constitution: "The right of the people to be secure … against unreasonable searches and seizures shall not be violated."  Aaron explained to TSA agents that he was expressing his views that the screening process was unconstitutional.

How did the TSA agents respond when Aaron displayed words universally regarded as a bulwark against tyranny? They immediately called airport police and had him arrested. Aaron was led away in handcuffs, then held for ninety minutes. Then they questioned him about his "intentions and goals," and asked him if he was involved in any terrorist organizations. Then they charged him with disorderly conduct. His personal items – his toothbrush, deodorant, writing utensils, and the t-shirt he had removed – were discarded.

Did we mention that all this occurred in the United States of America?

Aaron subsequently sued two TSA agents and the airport police officers involved in his arrest. In his complaint, among other things, he alleged that the defendants violated his First Amendment rights by seizing him or causing his seizure "without probable cause because of the message conveyed by [his] silent, nonviolent expression of objection to the TSA's screening policies . . . ." In Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), earlier this year, the Fourth Circuit Court of Appeals held that Aaron's complaint "most certainly" sets forth a valid First Amendment retaliation claim. "[I]t is crystal clear," the court wrote, "that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it."

The case settled earlier this month. As part of the settlement, the airport said that its security officers underwent a special two-hour training course on the First and Fourth Amendment rights of passengers. The Wall Street Journal wrote: "If his idea was to give airport security agents a lesson on constitutional rights, Mr. Tobey got his wish."

Airport security agents could have saved themselves the trouble of going back to school. Instead of treating Aaron like a criminal, they should have just read his chest.