Did TSA airport screeners violate free speech rights of bare-chested student?

A federal judge in Richmond ruled Tuesday that a lawsuit could move forward against two airport security screeners who had a college student arrested after he stripped to a pair of running shorts to protest what he felt were unconstitutionally intrusive search procedures.

The student, Aaron Tobey, had used a black marker to display a portion of the Fourth Amendment on his bare chest. It read: “The right of the people to be secure … against unreasonable searches and seizures shall not be violated.”

US District Judge Henry Hudson dismissed much of the federal lawsuit filed against various officials involved in the Dec. 30, 2010 incident at Richmond International Airport. But the judge said the portion of the suit that accuses two Transportation Safety Administration officers of violating Mr. Tobey’s free speech rights would be allowed to move forward.

The judge’s ruling opens the way for further investigation by Tobey’s lawyers into why security screeners called the police when Tobey removed most of his clothing.

The lawsuit claims that the security officials had Tobey arrested in response to his protest. Tobey’s lawyers say he has a right to peacefully object to the government’s treatment of airline passengers provided his actions are not disruptive.

The government argues that the police were called and Tobey was arrested because he failed to follow the screeners’ instructions that he proceed through the Advanced Imaging Technology screening device. The device has been controversial because it creates explicit images of the human body that amounts to a technological strip search.

Tobey disputes charges that he failed to follow instructions. He says he was told not to move and that he did not move until a police officer handcuffed him and took him into custody.

“The question … is whether the [screeners] in fact radioed for assistance because of the message [Tobey] sought to convey,” Judge Hudson wrote, “as opposed to [Tobey’s] admittedly bizarre behavior or because of some other reasonable restriction on First Amendment activity in the security screening area.”

Although an airport may seem to be a public space for purposes of free speech, the courts have upheld reasonable restrictions on speech in airports.

In addition to the First Amendment claim, Tobey also accused the federal screeners of violating his Fourth Amendment rights by having him arrested by police when there was no probable cause to believe he had committed a crime.

In dismissing the Fourth Amendment claim, Judge Hudson said Tobey’s decision to take his clothing off was “bizarre” and that the screeners were justified in calling the police.

“Given the heightened security interest at airport security checkpoints, it was eminently reasonable for [the screeners] to seek assistance from the … police,” Hudson wrote.

The lawsuit also seeks to hold officials accountable for alleged false imprisonment and malicious prosecution.

Tobey’s case is being litigated by the Rutherford Institute, a civil liberties group based in Charlottesville, Va.

The dispute arose as Tobey sought to pass through airport security in Richmond on his way to his grandfather’s funeral in Wisconsin. He had anticipated that he might be selected for enhanced secondary screening at the security checkpoint. In preparation he wrote his chosen message on his chest and was prepared to partially disrobe in an apparent effort to communicate his objection to what he viewed as intrusive searches.

When he was, in fact, selected for secondary screening, Tobey removed his T-shirt and sweatpants, revealing the message on his chest. One of the screeners allegedly told him that removal of his clothing was not necessary. But Tobey allegedly replied that he was taking his clothes off to protest the checkpoint’s unconstitutional procedures.

The police were called. Tobey was led away in handcuffs and held for 90 minutes. Police allegedly threatened that they would make sure he had a permanent criminal record because of his actions. He was also informed that he would be transported to the county jail.

Police charged Tobey with disorderly conduct in a public place, an offense that carries a year in jail and a $2,500 fine.

Officials later backed down on their threat to take him to jail. Instead he was questioned by an air marshal with the joint terrorism task force concerning his “intentions and goals” and any involvement with terrorist organizations, according to the judge’s opinion.

Eventually, Tobey was allowed to board his flight. The disorderly conduct charge was later dropped.

He filed his lawsuit in March. A tentative trial date is set for Jan. 18.