Originally Posted by dhuey
As I read Gilmore, I didn't have the sense that EFF screwed up the case. Prevailing on the argument that you have a previously unrecognized fundamental constitutional right of any kind is an uphill battle, to put it mildly. Gilmore did make some procedural errors in the case, but the Ninth Circuit essentially overlooked them and addressed the merits of his claim.
I am certainly not a lawyer, but I have a different understanding of this case.
First of all, I totally disagree with the Court. I believe it is unnecessary hair-splitting to recognize the right to travel, but not by any particular means.
I also think this was a terrible test case. The plaintiff has the means to hire any private mode of transportation. Furthermore, the dispute involved showing a form of ID, which a lot of people perceive as a rather trivial matter. This probably turned the judges against the plaintiff from the outset.
Consider a hypothetical case of a middle-class resident of Hawaii told: "Submit to body-cavity search or you don't fly!". I emphasize: The case is hypothetical. I venture a guess that the plaintiff would prevail. Obviously, this case is a total opposite extreme from
Gilmore.
As I said before, I think there is a line somewhere. But I don't think the line has been drawn yet. Recall that it was a threat of a lawsuit that forced the TSA to modify its disgusting pat-down procedure. Also, TSA had to abandon its program of conducting passenger background checks after being repeatedly spanked by the GAO. This means that there is some "penumbral" right somewhere. I hope the issues become clear as other test cases are filed and heard. One can only hope.
And one more comment: I think "Implied Consent" is an intellectually bankrupt doctrine. It needs to be done away with, but I have not yet seen a good test case to accomplish it. A hypothetical example might be a sign at a city limit line that says: "By proceeding you give implied consent to be stopped and searched at any time". I don not believe any Court would allow this to stand.