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DL passenger denied boarding due to t-shirt design

DL passenger denied boarding due to t-shirt design

Old Aug 24, 2012, 8:25 pm
  #151  
 
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Originally Posted by JoeBas
Case from before 9/11, irrelevant.
I assume that's sarcasm. But I don't see the case explicitly establishing a right to travel by a particular mode. That's not the way I read the quoted text.
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Old Aug 24, 2012, 8:27 pm
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Originally Posted by RedSnapper
But why not necessarily a right to air travel in the governmental context? Doesn't 49 U.S.C. 40103 explicitly grant such a right?
I find it hard to see exactly what that section does. Any law has to be understood in the context of surrounding statutes and the neighborhood here is such a hodge-podge that it seems hard to understand. You can't just look at the literal language here and jump to any conclusion.
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Old Aug 24, 2012, 8:45 pm
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Originally Posted by RichardKenner
I assume that's sarcasm. But I don't see the case explicitly establishing a right to travel by a particular mode. That's not the way I read the quoted text.
We seem to interpret it differently; I see it as establishing the right to travel by any mode (of interstate commerce). I think if the Court had wanted to exclude one or more particular modes, they would have said so.

More recently, and thus perhaps relevant , the 9th Court of Appeals (Gilmore v. Gonzales) concluded there was no constitutional violation because air passengers could still travel without identification if they instead underwent the more stringent "secondary screening" search. To me, that reads that had there not been that alternative then there would have been a 1st Amendment violation. YMMV.

(Gilmore should have been about 4th Amendment reasonableness but the plaintiff's lawyers opened the door to the 1st and the government successfully diverted the court. Straight out of Boston Legal).

Originally Posted by RichardKenner
I find it hard to see exactly what that section does. Any law has to be understood in the context of surrounding statutes and the neighborhood here is such a hodge-podge that it seems hard to understand. You can't just look at the literal language here and jump to any conclusion.
I'm not sure that particular code has anything to do with being a passenger on an airline.
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Old Aug 25, 2012, 2:22 am
  #154  
 
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three things...

First, I am amazed at the number of posters siding with Delta ITT. Sad to see what has become of my fellow citizens.

Second, many seem to overlook the fact that he did relinquish the shirt, yet was still denied boarding. That tells me the shirt was just a convenient excuse, and that the real motive in denying him boarding was more likely either his political beliefs or his appearance.

Lastly, many posters have correctly noted that Delta, as a private actor, is not bound by the Constitution. I would add though that freedom of expression is not only a right protected by the Constitution, but also one of the highest ideals of American society as a whole. A cherished principle that, IMO, should be respected by all Americans, public and private.

So while Mr Arijit may not have cause to seek Constitutional remedy in a court of law, he is right in seeking to hold Delta to account in the court of public opinion. They have demonstrated contempt for the principle of free speech by punishing this gentleman for his political message, and I for one join him in condemning Delta's disregard for free speech and common sense.

I would note also that while Delta is not a public entity, Niagara Frontier PD and TSA are, and they should be held to account for having subjected this citizen to harassment and additional scrutiny based on a political message.

Last edited by Top Tier; Aug 25, 2012 at 3:23 am
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Old Aug 25, 2012, 4:36 am
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Originally Posted by Wally Bird
We seem to interpret it differently; I see it as establishing the right to travel by any mode (of interstate commerce). I think if the Court had wanted to exclude one or more particular modes, they would have said so.
I just went and read the whole case (383 US 745) rather than just that quote and feel even stronger that the court did not do as you suggest. The part quoted is near the end of the opinion. It states quite clearly that it is not meant to create a new right, but to acknowlege an existing one and refers repeatedly to the "right of free interstate passage" and similar language. The third from last sentence says
"But if the predominant purpose of the conspiracy is to impede or prevent the exercise of the right of interstate travel, or to oppress a person because of his exercise of that right, then, whether or not motivated by racial discrimination, the conspiracy becomes a proper object of the federal law under which the indictment in this case was brought. "
So the right being protected is "interstate travel", not "interstate travel by mode X" for any X. It's not that they didn't "exclude" any particular mode, but rather than there was no discussion whatsoever of modes. In other words, this is yet another case that acknowleged that there's a fundamental right to travel between states, but is completely silent on whether there's a fundamental right to do so by any particular mode. Saying it another way, acknowleging that a person has a right to interstate travel by one of an ennumerated set of modes doesn't necessarily mean a person has a right to travel by any one of them in particular, just that at least one of them must be available.

Look, for example, at the cases cited in Footnote 16. These clearly talk about the fundamental right of citizens to reside peacefully within a state and to move from state to state. At the time of those cases, there were two common modes of transportation: train and road. None of these cases address, in any way, the question of whether a person had the right to travel using either of such modes: they merely discussed the right that a person has to get in some way from state to state, but not necessarily using the mode of their choice. There's no statement in this case or in any of the cited cases that would establish or acknowlege such a right.

But also note that this is a discrimination case and there the standard is different. There doesn't have to be a right to do something for it to be illegal to prevent somebody from doing it for reasons of race. There's no fundamental right to be able to drink water from a water fountain, for example, but if a fountain is available, it's not permitted to say that only white people can use it. Clearly, the court in this case would have found it illegal to restrict air travel just to white people, but that would not imply a "right" to air travel.

Let me ask the question this way: let's suppose that congress, using its power to regulate interstate commerce, passed a new law that said that large portions of the interstate rail system were to be used only for goods and that passenger travel on such tracks would no longer be legal. Do you think that this case would make such a law unconstitutional? I don't. And I don't see any other case or argument that would.

It's important to understand the origin of these rights. One, more modern, theory is that the right to travel is part of the First Amendment's protection of free association, but the more traditional view is somewhat different. The whole theory behind the formation of the US was that each state would have different sets of laws and that if somebody didn't like the laws in one state, they had the right to move to another state. But nobody in that time would have argued that this produced the right to do so in any particular way: it was the responsibility of the people who wanted to move to figure out a way to do so and in those times, transportation was exceptionally nontrivial.

Let me make this already long post longer by giving another analogy. Everybody agrees that a US citizen who's outside the country has an absolute right to reenter the US. But does this mean that he has the right to do so at any point along the border? Can you argue that because the court didn't exclude the right to enter at some particular point that a right to enter at any point of the person's chosing exists? Or just the right to enter at some points? In other words, do you accept that the designation of particular places to enter the US doesn't infringe the right of a citizen to return to the US? It's similar here: the right to travel between states doesn't necessarily imply a right to do so in any particular manner, just that some way must exist.

Air travel is indeed special because it's sometimes the only practical way to do certain travel due to its speed and there are indeed cases working there way through the courts making that argument. We'll have to see how the Supreme Court rules if it takes one of them. It may well accept that argument, and perhaps even cite this case in doing so, but until that happens, I don't see that any court has acknowleged such a right.

I'm not sure that particular code has anything to do with being a passenger on an airline.
Most of it certainly doesn't and clearly relates to rights of pilots, but part of it talks about accommodation of disabled people on commercial carriers, so it's very confused. I think one would have to go deep into the legislative history here to understand that particular code: my guess is that that part was added later.

Last edited by RichardKenner; Aug 25, 2012 at 5:50 am
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Old Aug 25, 2012, 8:33 am
  #156  
 
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Originally Posted by RichardKenner
We'll have to see how the Supreme Court rules if it takes one of them. It may well accept that argument, and perhaps even cite this case in doing so, but until that happens, I don't see that any court has acknowleged such a right.
We're at an impasse.
My lay reading is that, absent any specific exclusion, the right to travel applies equally to all modes and I really don't follow the argument about any implicit, unspecified prohibitions. So we'll leave it there.

I doubt that any pertinent case will make it to the Supreme Court. Lower courts and the DHS will collude to avoid the government being put on the spot and having to reveal its sensitive and secret (Gilmore) procedures.

It's possible that if someone were seriously injured or worse as a direct result of an airport checkpoint search such a case might make it to the top. Can't see how anyone else would have sufficient standing.
The other aspect is the No Fly List. If a US citizen on the list* is denied access to the domestic airline network purely on unproven 'suspicion' that would be a strong case.

(* the actual target not a hapless synonym)
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Old Aug 25, 2012, 12:04 pm
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Originally Posted by Wally Bird
We're at an impasse.
My lay reading is that, absent any specific exclusion, the right to travel applies equally to all modes and I really don't follow the argument about any implicit, unspecified prohibitions. So we'll leave it there.
I would agree with you here if there was a simple addition.

Every mode of transport, no exceptions, has its regulatory requirements and / or laws that govern what you can and cannot do while performing that mode of transportation or requirements that one must meet before using a particular mode of transport. Air travel is no different. Most, if not all, are designed for the safety of the traveler and any other member of the citizenry that may be affected by an individuals use of a transportation mode. Its been this way for more than a century. As each new mode of transportation has been added to our choices along with them have come restrictions and requirements.

In the case here, the ultimate authority on who can or cannot board an aircraft is the aircraft commander. To deny someone passage on his aircraft he / she must have a tangible and rational reason for the decision. In this case it was the comfort, and possibly the safety, of the other passengers on board the aircraft. It was his decision and his alone. None of us were there, we dont know the entire situation or the series of events that led to the PICs (Person In Charge) decision, so any of us second guessing that decision is inane. We dont have the requisite knowledge of that specific situation required to make such judgment.
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Old Aug 25, 2012, 12:55 pm
  #158  
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Originally Posted by TSORon
In the case here, the ultimate authority on who can or cannot board an aircraft is the aircraft commander. To deny someone passage on his aircraft he / she must have a tangible and rational reason for the decision. In this case it was the comfort, and possibly the safety, of the other passengers on board the aircraft. It was his decision and his alone. None of us were there, we dont know the entire situation or the series of events that led to the PICs (Person In Charge) decision, so any of us second guessing that decision is inane. We dont have the requisite knowledge of that specific situation required to make such judgment.
While that may be true, that also doesn't preclude the fact that this may have been (and most likely is IMO) a bad decision on the captain's part.

What it comes down to is did the TSA do their job? In theory, if TSA did their job properly, then he should have been free and clear of any objects that could threaten a plane. We'll assume that they did in this instance, and he had nothing on him. The only thing that can be inferred is that the captain was afraid that he MIGHT do something based on the shirt he was wearing.

Now, we have a serious problem in this country if we start banning people on what they MIGHT do, even if there is no evidence that he has even planned to do something. Any person on that flight MIGHT do something, as no one can read minds and know what someone is really thinking. The reality is that a person who IS going to do something isn't going to dress up in such a way that they advertise that fact.

While not commenting on the validity of the SPOT program, I also find it likely that TSA had a SPOTnik there of some sort assessing the guy and didn't find him to be lying. TSA ultimately had no problem with him flying as they found no evidence of a threat. What it came down to is fear on the captain's part.

And I'm sorry, fear of what someone MIGHT or MIGHT NOT do isn't sufficient reason to bar someone from a flight. - Not saying you're saying this, just a general statement.
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Old Aug 25, 2012, 1:09 pm
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Originally Posted by TSORon
I would agree with you here if there was a simple addition.

Every mode of transport, no exceptions, has its regulatory requirements and / or laws that govern what you can and cannot do while performing that mode of transportation or requirements that one must meet before using a particular mode of transport. Air travel is no different. Most, if not all, are designed for the safety of the traveler and any other member of the citizenry that may be affected by an individuals use of a transportation mode. Its been this way for more than a century. As each new mode of transportation has been added to our choices along with them have come restrictions and requirements.

In the case here, the ultimate authority on who can or cannot board an aircraft is the aircraft commander. To deny someone passage on his aircraft he / she must have a tangible and rational reason for the decision. In this case it was the comfort, and possibly the safety, of the other passengers on board the aircraft. It was his decision and his alone. None of us were there, we dont know the entire situation or the series of events that led to the PICs (Person In Charge) decision, so any of us second guessing that decision is inane. We dont have the requisite knowledge of that specific situation required to make such judgment.
Clerk Ron, please don't weigh in on issues that are so far beyond your capacity to analyze. The fact that the aircraft commander is the ultimate authority doesn't mean he is not subject to oversight. He can, for example, be removed (which is what should have happened). The airline can be sued for race discrimination, and the captain can be put in the stand and questioned about the reasoning that led to his decision to exert his "ultimate authority" in the way he did.

I wasn't on the Titanic either, but I know enough about what was going on to know that it was running too fast for conditions.

We know all the facts relevant to the decision as to whether or not to keep Mr. Guha off the aircraft - namely, that he posed no threat to the aircraft or any passenger on it. Making racist passengers comfortable in their racism is not a legitimate application of the captain's authority - "ultimate" or otherwise.
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Old Aug 25, 2012, 1:42 pm
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Originally Posted by Carl Johnson
...Making racist passengers comfortable in their racism is not a legitimate application of the captain's authority - "ultimate" or otherwise.
Ideally (IMHO) what should have happened is that the complainers - the nervous nellies - should have been removed from the flight as potentially subject to OTHER mentally irrational behavior like extreme reaction to turbulence, an insect sighting, or bad dreams if they doze off.

When the true source of the problem is identified and dealt with - irrational over-reaction fueled by racism and prejudice, the rest of the nellies will learn to suck up and deal, or take THEIR problems elsewhere than the airports.

If earlier flight crews in years past had dealt with this syndrome with stern vigor, it would have prevented the mass hysteria we suffer with today. I don't want to fly with the risk of a ticking time bomb of nellie-ness near me. Do I need to report THEM as making ME concerned about the safety of the flight?
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Old Aug 25, 2012, 7:14 pm
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Originally Posted by Wally Bird
We're at an impasse.
My lay reading is that, absent any specific exclusion, the right to travel applies equally to all modes and I really don't follow the argument about any implicit, unspecified prohibitions.
Perhaps a better way to say it is that these cases say that the right to travel is "merely" a right to "travel", that the point of the right is that a person be able to travel. It doesn't require that the government allow the person to travel in any specific way. I believe, for example, that it would be within the powers of the government to say that certain Interstate highways could carry commercial traffic only as long as there were other Interstate highways that passengers could use to get from state to state.

In other words, saying "you have the right to travel from NY to Florida" doesn't mean "you have the right to drive to Florida on I-95" or "you have the right to take a train from NY to Florida": it simply means "you have the right that there be some way to get from NY to Florida".

I agree with TSORon's comments that various modes of travel can have rules and regulations, but don't see the necessary relevance of that to whether there's a right to travel by a particular mode. The courts are often asked to decide whether a particular rule or regulation infringes on a "right". The fact that there's some rule limiting X doesn't mean that there's no right to do X, but the absence of a rule doesn't mean there is such a right.
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Old Aug 26, 2012, 12:47 pm
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Originally Posted by RichardKenner
Perhaps a better way to say it is that these cases say that the right to travel is "merely" a right to "travel", that the point of the right is that a person be able to travel. It doesn't require that the government allow the person to travel in any specific way. I believe, for example, that it would be within the powers of the government to say that certain Interstate highways could carry commercial traffic only as long as there were other Interstate highways that passengers could use to get from state to state.

In other words, saying "you have the right to travel from NY to Florida" doesn't mean "you have the right to drive to Florida on I-95" or "you have the right to take a train from NY to Florida": it simply means "you have the right that there be some way to get from NY to Florida".

I agree with TSORon's comments that various modes of travel can have rules and regulations, but don't see the necessary relevance of that to whether there's a right to travel by a particular mode. The courts are often asked to decide whether a particular rule or regulation infringes on a "right". The fact that there's some rule limiting X doesn't mean that there's no right to do X, but the absence of a rule doesn't mean there is such a right.
Preventing someone from traveling via a certain means because of their skin color or beliefs would be unconstitutional however, and that is what we are dealing with here.
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Old Aug 26, 2012, 1:35 pm
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Originally Posted by zombietooth
Preventing someone from traveling via a certain means because of their skin color or beliefs would be unconstitutional however, and that is what we are dealing with here.
Non-state actors are not in a position to engage in unconstitutional behavior as the Constitution does not restrict non-state actors in the manner it restricts the federal and/or state governments (and those with agency relationships thereof); however, the federal government is in a position to subject parties engaged in interstate commerce to (not) behave in certain ways if those non-state parties wish to operate without penalty and/or to utilize state resources.
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Old Aug 26, 2012, 7:10 pm
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Originally Posted by GUWonder
Non-state actors are not in a position to engage in unconstitutional behavior as the Constitution does not restrict non-state actors in the manner it restricts the federal and/or state governments (and those with agency relationships thereof); however, the federal government is in a position to subject parties engaged in interstate commerce to (not) behave in certain ways if those non-state parties wish to operate without penalty and/or to utilize state resources.
Yes, you are correct. I was imprecise with my thoughts and should have more carefully worded my post.
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Old Aug 27, 2012, 11:34 am
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If we wore a jacket over the shirt, and then took the jacket off as the plane lifted off the runway, they'd have to turn it around to make Johnny Peepants feel safe.
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