Man sues the TSA and B6

[PTravel]

Originally Posted by nsx

If you read the Second Amendment literally, people would be allowed to own everything from bazookas to nuclear weapons. There are always limits, and common sense has a role to play in setting those limits. I contend that in the case of speech, the setting makes some difference in the limits.

The construction given the First Amendment is the result of consistent evolution over 200+ years of constitutional jurisprudence. Your contention is absolutely contrary to the purpose of the First Amendment and finds no support in either the law or in a reasonable construction of the constraints placed on the government. The Bill of Rights is not a list of "rights," per se, but a reiteration of those powers that are expressly denied to the government and were retained by the people at formation. Any usurpation of powers denied to the government by the Bill of Rights is, literally, an act of tyranny. For this reason, a complex jurisprudence has grown up around the First Amendment that ensures that the government can regulate certain collateral aspects of speech, without infringing speech, itself. Precluding speech because the ideas expressed are unpleasant, called "content-based discrimination" is, for all intents and purposes, always held to be unconstitutional, i.e. a usurpation of power denied to the government by the Constitution.

As I said, Jet Blue isn't a government actor and can stop people from boarding if they are wearing t-shirts bearing messages of which Jet Blue doesn't approve. TSA, however, can never do this, as it is, without question, contrary to both the meaning and purpose of the First Amendment.

[goalie]

Originally Posted by nsx

I find it preposterous that potentially offensive speech should be as free on an airplane as it is on the street. There are plenty of things I may say and do on the street that are not permitted on an airplane, for good reasons.

It's possible that some court will unmoored from reality will say that people can wear Nazi T-shirts on an airplane just like they can do on the street, but such a decision would still violate common sense. If you want to raise a fuss, do it outside, not on an airplane. I'm a great believer in the First Amendment, but the confined space of an airplane is not the public square.

since you mentioned the nazi symbol, i will use that as an example.

i am jewish and the nazi symbol brings out anger, disgust an hatred in me as imho, the nazis were, just to use one example, a group of murderers.

do i not like the swastika-yes, i despise it
do i get angry when i see it-yes
does it offend me-yes

now.....

are people in the u.s. allowed to display it-yes
are people allowed to wear it on their clothing-yes
are people in the u.s. allowed to march and make speeches in support of it-yes

can the government tell people where and when and how this despicable symbol can/cannot be displayed. yes-it cannot be displayed, worn or otherwise be made visbile on any government building or similarly associated government venue, plaza or similar location but the government cannot regulate the displaying (in anny manner shape or form) of this despicable symbol on non-government property.

you mention that a court may go against common sense in allowing someone to display this hated symbol in a "closed space" but until we change the constitution, it must be allowed-sometimes common sense & personal feelings and the law do not agree. personally, i would want to "punch the person wearing the nazi symbol right in the nose" but the law says thay can wear it. the only way to prevent it would be for the airline, similar to a private club where you pay for access, to establish a dress code for its patrons.

the law says it's allowed-i may not like a person displaying a swastika but the law has to be applied equally or not at all and god help us if not at all.

[gfunkdave]

If you read the second amendment literally, people should:

a) be allowed to only carry such arms as the Founding Fathers were familiar with
and
b) be compelled to serve in the armed forces or other "well regulated militia", since that is the purpose given for allowing people to bear arms.

And don't even get me started on what happens when you read the bible literally.

Originally Posted by nsx

If you read the Second Amendment literally, people would be allowed to own everything from bazookas to nuclear weapons. There are always limits, and common sense has a role to play in setting those limits. I contend that in the case of speech, the setting makes some difference in the limits.

[Global_Hi_Flyer]

Originally Posted by PTravel

Airplanes are operated as private businesses. Airlines can exclude passengers for any reason they want, as long the exclusion isn't based on discrimination against a protected class. The issue isn't whether Jet Blue would allow the t-shirt wearing pax on board, but their attempt to involve TSA. TSA is a government actor, Jet Blue is not. TSA can violate someone's First Amendment rights, Jet Blue can not.

Sorry, but I don't think you're a great believer in the First Amendment. "Congress shall make no law restricting the freedom of speech." Jet Blue can do whatever it wants. TSA cannot.

Correct.

Now, if JB permitted the identical T-shirt with the words printed in English vs banning the shirt if the same words were printed in Arabic, there could be an arguable case against JB. Winning that case is a different matter. (I do note that some states and jurisdictions have taken action against business establishments that adopt an "English-only" policy... for example: http://www.msnbc.msn.com/id/13272368/GT1/8211/ )

Involving the TSA made this a much different matter, as you correctly point out. Then it does become a First Amendment issue.

[PTravel]

Originally Posted by goalie

scan the government tell people where and when and how this despicable symbol can/cannot be displayed. yes-it cannot be displayed, worn or otherwise be made visbile on any government building or similarly associated government venue, plaza or similar location but the government cannot regulate the displaying (in anny manner shape or form) of this despicable symbol on non-government property.

Goalie, that's not quite correct. The traditional venue for speech is termed a, "public forum." Public fora include such things as sidewalks and street corners, public parks, bandshells, etc. Most of these are, of course, government owned. The government cannot engage in content-based speech discrimination in public foras (at least absent a "compelling state interest," "least restrictive means," etc.). If the Nazis want to hold a rally in Central Park in New York, they can, as long as they comply with the same permitting and other requirements applied to other groups. Some government-owned facilities are considered "quasi-public fora," i.e. not traditionally intended for free speech purposes, but a location where they can occur. An example of a quasi-public forum would be a court house -- the government cannot engage in content-based discrimination in a quasi-public forum, either. Cohen v. California is an example of such a case. During the Vietnam era, Cohen showed up at a California courthouse wearing a jacket that said, "F___ the Draft" on the back. He was removed (and possibly arrested, if I recall correctly). The U.S. Supreme Court, reviewing the case, upheld Cohen's right to this particular form of expression on the ground that it was protected under the First Amendment. Like Cohen's jacket, Jarrar's t-shirt was worn in a quasi-public forum, an airport. It is settled law that the government may not engage in content-based speech discrimination at airports (Presumably, talking about bombs and hijacking meet the "compelling state interest, least restrictive means" test -- I'm not sure if it's ever been tested for constitutionality, though). Jarrar's right to express himself by wearing a t-shirt containing the phrase "We will not be silent," either in English, Arabic or any other language that he chooses. The government is forbidden to interfere with this right.

Of course, as you note, Jet Blue is not subject to any such constraints and can bar Jarrar if it chooses.

[nsx]

Originally Posted by PTravel

Like Cohen's jacket, Jarrar's t-shirt was worn in a quasi-public forum, an airport.

An airport is not an airplane. If the legal argument relies on the proposition that an airplane is a public forum, that's a flimsy foundation.

Furthermore, I don't even agree that an airport is a quasi-public forum. Moonies and all manner of solicitors were essentially banned from airports decades ago. They could not have been similarly banned from the public sidewalk.

[PTravel]

Originally Posted by nsx

An airport is not an airplane. If the legal argument relies on the proposition that an airplane is a public forum, that's a flimsy foundation.

And, as I've said repeatedly Jet Blue can prohibit Jarrar from wearing his shirt on-board. TSA, however, may not.

Furthermore, I don't even agree that an airport is a quasi-public forum. Moonies and all manner of solicitors were essentially banned from airports decades ago. They could not have been similarly banned from the public sidewalk.

Incorrect. First of all, solicitors are engaging in commercial speech, which is afforded a lesser degree of First Amendment protection than political speech, which is deemed "core value" speech as a matter of law. Second, the solicitors are not banned, but restricted to specific areas where they will not interfere with the flow of passengers who are going about the business for which the quasi-public forum was intended, i.e. air travel. "Reasonable time, place and manner" restrictions are permitted for non-content-based speech discrimination.

[sbrower]

With due respect, PT, I think you have been wrong in this thread. B6 is a common carrier. Further, B6 is a public accomodation in interstate commerce. I haven't taken the time to do a LEXIS search, but a bet on a high quality adult beverage says that you are mistaken. B6 cannot prohibit travel just because it is a "private business." For example, if you arrive at the airport with a shirt saying "B6 is an awful airline" or "B6 is run by an idiot" or "B6 is a stinking non-union shop" or "Fly UAL, don't fly B6" I do not believe that they could refuse to transport you or otherwise object to your T-Shirt.

[PTravel]

Originally Posted by sbrower

With due respect, PT, I think you have been wrong in this thread. B6 is a common carrier. Further, B6 is a public accomodation in interstate commerce. I haven't taken the time to do a LEXIS search, but a bet on a high quality adult beverage says that you are mistaken. B6 cannot prohibit travel just because it is a "private business." For example, if you arrive at the airport with a shirt saying "B6 is an awful airline" or "B6 is run by an idiot" or "B6 is a stinking non-union shop" or "Fly UAL, don't fly B6" I do not believe that they could refuse to transport you or otherwise object to your T-Shirt.

You'll have to show me case law that holds that common carriers are state actors. Because the First Amendment is a restriction on government power, i.e. it precludes the state from usurping rights that reside in the people, it is, logically and legally, impossible for a non-state actor to infringe anyone's First Amendment rights. For example, shopping centers, restaurants and hotels are also public accommodations and subject to regulation under the Commerce Clause, but they can exclude anyone they want (except in California, which has a First Amendment that is more extensive than its federal counterpart).

B6, as a common carrier, is subject to extensive regulation and is more constrained than, say, my office, with respect to who it may and may not exclude. It is, however, perfectly free to deny someone transportation based on their wearing a t-shirt that says, "Jet Blue stinks!" without implicating the wearer's First Amendment rights. I have heard of instances in which airlines have denied boarding to people wearing clothing with provocative, but not legally-obscene, messages.

My point, though, was that TSA is, without question, a state actor and, as such, cannot deny access to air travel to anyone based on the exercise of their First Amendment rights, whether that exercise consists of wearing an Arabic-language "We shall not be silent!" t-shirt or using a "Kip Hawley is an idiot!"-inscribed "freedom baggie."

I will, however, take you up on the beverage bet. You're not going to the SFO MegaDo by any chance, are you? That would be a good place and time to settle up, and gives us both an adequate opportunity to research and brief the question.

[nsx]

Originally Posted by PTravel

Incorrect. First of all, solicitors are engaging in commercial speech, which is afforded a lesser degree of First Amendment protection than political speech, which is deemed "core value" speech as a matter of law. Second, the solicitors are not banned, but restricted to specific areas where they will not interfere with the flow of passengers who are going about the business for which the quasi-public forum was intended, i.e. air travel. "Reasonable time, place and manner" restrictions are permitted for non-content-based speech discrimination.

Moonies would argue that their speech is religious, not commercial.

IMHO, banning Nazi T-shirts on board an airplane is in fact a "reasonable time, place, and manner" restriction. But it is content-based, as is the long-accepted prohibition against riot-inciting speech.

[AgtMulder]

My last flight on US Air I saw two women wearing these shirts.

Their content was arguably more upsetting and directly related to violence than the one the man wore in the article. Nobody kicked them off the plane. Nobody got uncomfortable.

Their shirts were stupid, like many t-shirts I see every day. I ignored them. Life went on and no rights were trampled on.

[sbrower]

Originally Posted by PTravel

You'll have to show me case law that holds that common carriers are state actors. Because the First Amendment is a restriction on government power,. . .

I guess I wasn't clear. I am not arguing that they are a state actor (a technical term that you and I understand). I am arguing that, as a common carrier, they do *not* have the right to refuse to transport anyone, for any reason, except for certain narrowly prescribed exceptions, such as: genuine security, non-payment, public intoxication, health hazard, etc.

I am relatively certain, for example, that if someone arrives at the B6 ticket counter, and says "Hi, I am a union organizer. I want to purchase a ticket to attend a "Organize B6 For Worker's Rights Convention"" they could not refuse transport.

[PTravel]

Originally Posted by nsx

Moonies would argue that their speech is religious, not commercial.

Asking for a donation is, by definition, commercial speech, regardless of the intended ultimate purpose for the money.

IMHO, banning Nazi T-shirts on board an airplane is in fact a "reasonable time, place, and manner" restriction. But it is content-based, as is the long-accepted prohibition against riot-inciting speech.

Banning any t-shirt with writing would be non-content-based discrimination, and could be subject to time, place and manner restrictions without violating the First Amendment IF B6 was a state actor; if B6 is not a state-actor, there are no First Amendment concerns whatsoever. Banning a t-shirt with specific writing, e.g. a swastika or arabic letters spelling out, "We shall not be silent" is, by definition, content-based discrimination. Time, place and manner restrictions apply only to content-neutral discrimination. IF B6 was a state actor, it would not avoid the First Amendment violation by claiming its exclusion of the wearer was a reasonable time, place and manner restriction.

The ability to restrict riot-inciting speech has nothing to do with time, place and manner restrictions. The rationale in Brandenburg v. Ohio is that speech which results in a likelihood of imminent illegal action ceases to be pure speech and is more akin to conduct. Conduct can be regulated by the government without implicating the First Amendment.

Again, I don't think you realize the extent to which the free expression of ideas is protected by the Constitution.

[PTravel]

Originally Posted by sbrower

I guess I wasn't clear. I am not arguing that they are a state actor (a technical term that you and I understand). I am arguing that, as a common carrier, they do *not* have the right to refuse to transport anyone, for any reason, except for certain narrowly prescribed exceptions, such as: genuine security, non-payment, public intoxication, health hazard, etc.

I don't disagree. I'm not sufficiently familiar with common carriage law to know under what bases a common carrier may exclude a passenger. Perhaps B6 is required to transport Jarrar regardless of what his shirt may say. However, if so, the basis for the obligation to transport is not found in Jarrar's First Amendment rights. Absent case law to the contrary, I simply don't see how B6 qualifies as a state actor and is therefore constrained by the limitations contained in the Bill of Rights.

I am relatively certain, for example, that if someone arrives at the B6 ticket counter, and says "Hi, I am a union organizer. I want to purchase a ticket to attend a "Organize B6 For Worker's Rights Convention"" they could not refuse transport.

Why not? As I said, I'm not sufficiently familiar with the law of common carriage. Under what circumstances must a common carrier transport a passenger? In any event, if B6 said, "We're not transporting you because we don't like the pro-union message on your shirt," it would not be violating the wearer's First Amendment rights because B6 is not a state actor by any measure of which I'm aware. If, in fact, the t-shirt wearer has a claim against B6, it would be based on common carriage law, and not on the putative First Amendment violation.

[ND Sol]

Originally Posted by PTravel

B6, as a common carrier, is subject to extensive regulation and is more constrained than, say, my office, with respect to who it may and may not exclude. It is, however, perfectly free to deny someone transportation based on their wearing a t-shirt that says, "Jet Blue stinks!" without implicating the wearer's First Amendment rights. I have heard of instances in which airlines have denied boarding to people wearing clothing with provocative, but not legally-obscene, messages.

While I will agree with you that it is not a First Amendment issue with respect to Jet Blue, as a common carrier B6 is held to a higher standard and may not deny transportation arbitrarily. I don't think that B6 is correct in its decision in this case, just as it cannot just deny transportation to people with blonde-dyed hair. I have also read about those other clothing cases as well, but I am unaware that any of them went to trial and each of those were certainly pushing the envelope further IMHO.