janetdoe

I think I understand Richardkenner's argument; one might say analogously "The right to free speech is merely the right to speak. It doesn't mean that the government can't limit the frequencies where you are allowed to broadcast radio." And clearly the government can limit some aspects of flying, thus the FAA, thus TSA security checks. But saying that the right to travel does not include flying on commercial scheduled air service goes way beyond that, and it would significantly restrict / diminish the right to travel as we know it in the 20th and 21st centuries.

Of course the government can build a cargo-only interstate highway and restrict travel along this venue to pre-cleared commercial cargo without violating the right to travel. Of course government can insist that anyone driving on a highway is properly licensed to ensure the safety of other drivers. But for a commonly accepted method of public transit, (like flying or riding a train) the government placing new restrictions on it that severely limit interstate travel, or forbid interstate travel to certain persons, is a different scenario entirely.

Surely there is some balancing test - the truth has to lie somewhere in the middle of these two extremes. If the only way that you are allowed to "travel interstate" is by walking across the state border at one specified point, surely that would violate the "right to interstate travel"? I would think a proper statement would be something more along the lines of "There is generally a right to travel interstate by any means, subject to constraints that facilitate legitimate/important government interests."

Even in Gilmore v. Gonzales, the only reason the "No Fly List" and asking for ID at security checkpoints were deemed Constitutional was that the passenger has the option to refuse to show ID, and instead submit to a more intensive security screening. The government interest is ensuring safe flights, and the convenient way to do this is ask for ID. But the only reason asking for ID is permissible is that there is alternative that does not interfere with the passenger's right to travel. To me, that says you have a right to fly on airplanes, but no right to fly on airplanes with anything considered 'dangerous' by the TSA.

So obviously there is a little more here than, "As long as you have some way to conduct travel interstate, we are not interfering with your right to travel." If the right to interstate travel did not apply to all common methods of travel, including air travel, they would have stated it in Gilmore instead of coming up with such convoluted logic to justify the "No Fly List".

InkUnderNails

Ink's extremist view:

Even if there is no explicit right to travel, there is no enumerated power that permits Congress to restrict our right to travel.

But, Congress does a lot of things for which they have no enumerated power to do. Congress is just another Constitution-free zone.

sethb

I would love to see the captain's explanation of his "tangible and rational" reason in this case. A claim that other passengers were irrational is a valid reason to deny them boarding, not the victim of their irrationalities.

sethb

I think you are missing a key point: distinguishing among people. If the government shut down I-95 for a while, that would be much more likely to be legal than prohibiting people wearing anti-TSA t-shirts from traveling along it while allowing those dressed otherwise. Similarly, shutting down all air travel, or all air travel at specific locations (e.g. when AF-1 is arriving) is allowed; but that also does not discriminate among travelers.

rico567

In the raised level of paranoia that permeates all air terminals I've been in since 9-11, a stunt like this is just stupid, and a strip search is probably no more than this person deserves. Maybe rubber gloves and a soupçon of cavities, too.

sethb

What does someone who thinks the Constitution should be ignored due to stupidity/paranoia deserve?

GUWonder

If a US person, the punishment for treason may well be deserved.

puddinhead

The T-shirt was stupid. the TSA have limited power but they do have the power to slow things down, i.e. cause you to miss your flight. If annoyed that can use their limited list of pat downs, bag searches, etc. as a stall tactic.

Same with flight crew, an aging FA who's life didn't turn out like she wanted bars a young woman in a short skirt from flying. A threat to aviation if we're able to see where life originates when walking down the aisle towards her? I hope not or Al Qaeda will be looking for their next band of terrorists at strip clubs.

I'm unhappy as a traveler, between security theatre and delayed, crowded flights so I can only imagine that the TSA and flight crews don't really like their jobs compounded with reduced wages and benefits. It's not the same as getting to be Snow White or Mickey Mouse at Disneyland - no one looks forward to the whole process at an airport like a six year old looks forward to a theme park visit.

I maintain a low profile, try to blend in, smile and when the TSA gets surely I try tomchange their attitude with a kind word. if that doesn't work I polietly ask them not to blame me for a series of bad life choices that caused them to end up where they are today.

adpucci

it's terrifying to see so many people on this board have had a reality AND sense-of-humour bypass op.

for me, big kudos to the guy.

tkey75

And then he has to explain to his boss that he allowed half the plane to stay behind and be rebooked because one individual made them uncomfortable. I imagine that would not go well.

sethb

So how many people have to threaten to be disruptive in order to violate the rights of one non-disruptive passenger? Please put a number on it.

yostwl

I think someone has to be pretty dense not to think that a shirt like that might cause a problem. There are terrorists. There are nut cases. So what would people here post the first time security ignores a T-shirt or suitcase sticker or whatever that features pictures of or language about bombs, security, explosions, guns, or related issues and the person does turn out to be some sort of nut who tries to take over or crash an aircraft?

sethb

I guess on your planet I shouldn't read mysteries either, because their covers often feature such stuff.

So what happens the first time security ignores a man in a business suit and he turns out to be some sort of nut?

So what happens the first time security pays excessive attention to a woman in a short skirt, but lets her through eventually, and she turns out to be some sort of nut?

What are the relative odds of someone with a funny t-shirt being a terrorist compared with someone dressing so as not to be noticed?

mikeef

If 100% of the passengers on that flight were nervous about the t-shirt, the correct response would have been to unload every one of them, apologize to t-shirt guy for the delay and take him to his destination.

The same thing I'd post if anyone turned out to be a nut who tries to take over or crash an aircraft.

Mike

RedSnapper

Now I'm curious too...
The statute in question was enacted in by the 103rd congress in 1994 as H.R.1758. The text in question is as follows:
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(a) Sovereignty and Public Right of Transit.—
(1) The United States Government has exclusive sovereignty of airspace of the United States.
(2) A citizen of the United States has a public right of transit through the navigable airspace. To further that right, the Secretary of Transportation shall consult with the Architectural and Transportation Barriers Compliance Board established under section 502 of the Rehabilitation Act of 1973 (29 U.S.C. 792) before prescribing a regulation or issuing an order or procedure that will have a significant impact on the accessibility of commercial airports or commercial air transportation for handicapped individuals.
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"...courts must presume that a legislature says in a statute what it means and means in a statute what it says there." [503 U.S. 249, 253-254]. Sure, congress could have hypothetically meant that only pilots had the right to "transit through navigable airspace", but if this had been congressional intent, it could have been explicitly stated. I find it hard to believe that congress sought to insure airport access to only handicapped pilots to further what it specifically designates a "right". I'm also not persuaded by arguments that congress did not have in mind commercial air transport when it designated a right to air travel, especially since it makes explicit references to it in the statute. In 1994 most of the people who traveled through the navigable airspace did so as paying passengers on commercial carriers. I don't see anything in the legislative history that suggests that congress did not intend the law to apply to them...and to us today.

Unless 49 USC § 40103 has since been repealed, struck down by a court or otherwise done away with, I think it still applies...for what it is worth. "A citizen of the United States has a public right of transit through the navigable airspace." A right to air travel may not be declared in the constitution, but it is declared in this federal statute.