View Poll Results: Do you agree or disagree with the action undertaken by MKEbound?
Agree
766
75.92%
Disagree
144
14.27%
Neither agree nor disagree
75
7.43%
Not sure
24
2.38%
Voters: 1009. You may not vote on this poll
I was detained at the TSA checkpoint for about 25 minutes today
Sep 30, 2006, 12:24 pm
#1051
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Originally Posted by Bart
Your emotional defensiveness continues to intrigue me. Maybe lawyers have changed over the years and become overly sensitive. Or perhaps I just worked with a different brand of lawyers.
Sep 30, 2006, 12:25 pm
#1052
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Last edited by Bart; Jan 5, 2008 at 9:44 am
Sep 30, 2006, 12:27 pm
#1053
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Originally Posted by Bart
I do not disagree with you. It does not excuse their actions. Their actions misrepresent TSA but do not, as you appear to believe, represent official TSA policy.
There is a difference.
There is a difference.
Sep 30, 2006, 12:30 pm
#1054
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Last edited by Bart; Jan 5, 2008 at 9:44 am
Sep 30, 2006, 12:31 pm
#1055
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Coward? Pumpkin? Cupcake?
Folks, methinks we're flirting with a TOS violation here. "Cowardice" to describe an action or suggested action would be preferable to calling a fellow FTer a coward.
As for pumpkin and cupcake...
mmm...
pumpkin cupcakes...
droooooooool...
Folks, methinks we're flirting with a TOS violation here. "Cowardice" to describe an action or suggested action would be preferable to calling a fellow FTer a coward.
As for pumpkin and cupcake...
mmm...
pumpkin cupcakes...
droooooooool...
Sep 30, 2006, 12:31 pm
#1056
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Last edited by Bart; Jan 5, 2008 at 9:43 am
Sep 30, 2006, 12:32 pm
#1057
Join Date: May 2004
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Originally Posted by PTravel
MKEbound was subjected to harrassment and the threat of detention solely for the political speech that was written on the baggie (based on what the OP says happened -- however, neither you nor I have any additional information so speculation is pointless). State action that has the effect of "chilling speech" (a legal term of art that, apparently, was not covered in your TSA Constitution class), particularly in a content-discriminatory fashion (another legal term of art) constitutes a prima facie First Amendment violation.
Once again, everyone is entitled to an opinion, and everyone is entitled to discuss what they think is the meaning of the First Amendment. You, however, are a state actor (and a fairly senior one at that), yet you continue to present your naive and wholly-inadequate understanding of Constitutional law as the standard for the conduct of the other state actors for whom you are responsible. There is no difference between this and the TSO described in another thread who presumed to tell a diabetes sufferer what was and was not necessary for the management of their disease. You are not qualified to impose your medical opinion on anyone -- I don't think you'd disagree about that. However, you are also not qualified to impose your legal opinion on anyone. It astounds me that you would think otherwise.
You don't have to believe me -- I have plenty of clients who pay quite a bit of money for my legal opinion, so I'm really not in need of validiation from an anonymous TSA supervisor. I would think, however, that at minimum you'd make inquiries of TSA lawyers (I assume TSA has lawyers on staff), rather than punting an answer each of these posts and confirming, each time, your complete unfamiliarity with constitutional law.
Once again, everyone is entitled to an opinion, and everyone is entitled to discuss what they think is the meaning of the First Amendment. You, however, are a state actor (and a fairly senior one at that), yet you continue to present your naive and wholly-inadequate understanding of Constitutional law as the standard for the conduct of the other state actors for whom you are responsible. There is no difference between this and the TSO described in another thread who presumed to tell a diabetes sufferer what was and was not necessary for the management of their disease. You are not qualified to impose your medical opinion on anyone -- I don't think you'd disagree about that. However, you are also not qualified to impose your legal opinion on anyone. It astounds me that you would think otherwise.
You don't have to believe me -- I have plenty of clients who pay quite a bit of money for my legal opinion, so I'm really not in need of validiation from an anonymous TSA supervisor. I would think, however, that at minimum you'd make inquiries of TSA lawyers (I assume TSA has lawyers on staff), rather than punting an answer each of these posts and confirming, each time, your complete unfamiliarity with constitutional law.
http://en.wikipedia.org/wiki/Chilling_effect
A chilling effect is a situation where speech or conduct is suppressed or limited by fear of penalization at the hands of an individual or group. For example, the threat of a costly and lengthy lawsuit might prompt self-censorship and have a chilling effect on free speech.
In United States law, chilling effects refer to the stifling effect that vague or overbroad laws may have on legitimate speech and activity typically protected by the First Amendment.
The origin of the phrase is unknown; it was in use in the United States by 1965, when William J. Brennan used it in a judicial decision referring to the "chilling effect [a particular law might have] upon the exercise of First Amendment rights" [1]; the case in question was Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493 (1965). That case invalidated a Federal law that required postal patrons receiving "communist political propaganda" to specifically authorize the delivery of each such piece of mail [2]. The phrase was also used as early as 1950, as if it were commonly understood, in a law review article by Harvard Law Professor, Paul A. Freund, in The Supreme Court and Civil Liberties, 4 Vanderbilt Law Review 533, at 539 (1950-1951).
It is important to note that the Lamont case did not center around a law that explicitly outlawed speech; a "chilling effect" can exist even when there is no explicit prohibition of speech in the law at all. In the original decision, the criterion was that the law have a "deterrent effect" on freedom of expression. In general, "chilling effect" is often used in reference to laws or actions that do not explicitly prohibit legitimate speech, but that impose undue burdens.
peace,
~Ben~
Sep 30, 2006, 12:33 pm
#1058
Join Date: Feb 2005
Posts: 2,062
Originally Posted by PTravel
First of all, "combative" is not a legal term of art. "Combative" can mean argumentative, abrupt, rude, disrespectul or a whole range of conduct that is not illegal and does not provide a basis for abridging constitutional rights. The TSA spokesperson is completely tacit about what constitutes, "a little combative." Nonetheless, as I said, I'm not interested in discussing whether the OP is a liar or not. I've provided by my legal opinion based on what the OP reported.
I don't know what "combative" means in this context. From the OP's original post:
The OP didn't threaten anyone, wasn't obstructing the screening process, didn't disturb the peace, didn't incite anyone to imminent illegal conduct (so-called "Brandenburg speech"), didn't use "fighting words," ("Chaplinsky speech"), didn't make any admissions that would suggest liability for illegal conduct, didn't refuse to identify himself, or anything else that would support calling for a LEO. He said, "I have written my opinion." He was told that he was no permitted to do so, and subjected to harrassment and the threat of arrest and detention as a result.
An airport is no different than a court house -- they are both quasi-public fora. Writing, "Kip Hawley is an idiot" on a baggie is no different than writing, "F@@k the Draft" on a jacket -- they are both political speech, and there is no less offensive way of expressing the idea embodied in either statement. If anything, the OP's experience is a greater violation. Cohen's jacket contained an "offensive" word, and use of that is routinely regulated. See, e.g., FCC v. Pacifica (explained quite well by George Carlin in his "7 words you can't say on television" routine). The OP's baggie contained no offensive language -- it was the specific political message that attracted the attention of the state actor. This is content discrimination, another legal term of art, that mandates evaulating the state actor's action against a "strict scrutiny" standard (yet another legal term of art).
I can certainly imagine conduct by the OP that, coupled with the writing on the baggie, would provide sufficient grounds for initially detaining him. However, that is not what is at issue, as the OP's description (which is the only description of what actually happened -- and as I said, I'm not interested in debating whether the OP lied, I'm only interested in the constitutional issues raised by this incident) indicates that the harrassment was unrelated to his conduct and was solely a response to the writing on the baggie.
I don't know what "combative" means in this context. From the OP's original post:
The OP didn't threaten anyone, wasn't obstructing the screening process, didn't disturb the peace, didn't incite anyone to imminent illegal conduct (so-called "Brandenburg speech"), didn't use "fighting words," ("Chaplinsky speech"), didn't make any admissions that would suggest liability for illegal conduct, didn't refuse to identify himself, or anything else that would support calling for a LEO. He said, "I have written my opinion." He was told that he was no permitted to do so, and subjected to harrassment and the threat of arrest and detention as a result.
An airport is no different than a court house -- they are both quasi-public fora. Writing, "Kip Hawley is an idiot" on a baggie is no different than writing, "F@@k the Draft" on a jacket -- they are both political speech, and there is no less offensive way of expressing the idea embodied in either statement. If anything, the OP's experience is a greater violation. Cohen's jacket contained an "offensive" word, and use of that is routinely regulated. See, e.g., FCC v. Pacifica (explained quite well by George Carlin in his "7 words you can't say on television" routine). The OP's baggie contained no offensive language -- it was the specific political message that attracted the attention of the state actor. This is content discrimination, another legal term of art, that mandates evaulating the state actor's action against a "strict scrutiny" standard (yet another legal term of art).
I can certainly imagine conduct by the OP that, coupled with the writing on the baggie, would provide sufficient grounds for initially detaining him. However, that is not what is at issue, as the OP's description (which is the only description of what actually happened -- and as I said, I'm not interested in debating whether the OP lied, I'm only interested in the constitutional issues raised by this incident) indicates that the harrassment was unrelated to his conduct and was solely a response to the writing on the baggie.
In reading the Cohen v California decision a couple key aspects stand out to me. I found it here :
http://caselaw.lp.findlaw.com/script...l=403&invol=15
"At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished...."
"....for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses. In this vein, too, however, we think it important to note that several issues typically associated with such problems are not presented here."
The decision does provide that there are exceptions to when the First Amendment may be restricted and that in this case they do not address all of those issues.
"It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be
Reversed."
The last sentence of the opinion reinforces that it was a violation in that case because the was the only rationale for the conviction. I'm saying in this case the rationale for "detaining" him was MKE's "combative" or "threatening" behavior. The state wasn't saying Cohen was being combative/threatening etc ...... Again, he was arrested without saying anything, he wasn't being threatening, just wearing a shirt. This case is different in that respect in my opinion, again this depends upon what actually transpired at the checkpoint.
Sep 30, 2006, 12:36 pm
#1059
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Originally Posted by Bart
Why do you not pose the same question to the poster who fired the first shot across the bow?
Do I have faith in all of us raising the level of dialogue? Yes.
Sep 30, 2006, 12:40 pm
#1060
Join Date: Jul 2004
Programs: NW Gold, '06. Good times.
Posts: 7,364
Originally Posted by Bart
I'm not offended. This is an inside joke between Superguy and me.
Be that as it may, I'm concerned that some mods may not know this and take action.
But at least you guys are civil. ^
Sep 30, 2006, 12:40 pm
#1061
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Originally Posted by Bart
Haven't you been reading anything I've been posting?
Originally Posted by Bart
There is no TSA policy prohibiting what MKEbound did. About the only thing that would come remotely close to being prohibited would be if MKEbound or anyone else were to obscure the bag by placing markings, stickers, etc on the outside of the bag in a manner that made it difficult to view the contents. But then the issue would not be whatever was written on the bag. The issue would be with a bag that is not transparent or attempts to obscure the physical view of the bag. Why is this important? Because x-ray will reveal whether or not there is something concealed inside one of the containers. Having a clear plastic resealable bag will allow a TSO to physically inspect the bag to determine if any of the items are prohibited such as a 4oz container of pepper spray which can appear to look like an inhaler on the x-ray.
Sep 30, 2006, 12:47 pm
#1062
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Last edited by Bart; Jan 5, 2008 at 9:43 am
Sep 30, 2006, 12:48 pm
#1063
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Originally Posted by cme2c
You keep saying your not interested in whether the OP has lied or not, yet you keep using his description of the events for your legal argument. So use whatever legal term of art you want, IF he was acting in a combative or threatening manner, Is it okay to question him further without violating his First Amendment rights, even though the initial contact was due to his political expression?
In reading the Cohen v California decision a couple key aspects stand out to me. I found it here :
http://caselaw.lp.findlaw.com/script...l=403&invol=15
"At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished...."
"....for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses. In this vein, too, however, we think it important to note that several issues typically associated with such problems are not presented here."
The decision does provide that there are exceptions to when the First Amendment may be restricted and that in this case they do not address all of those issues.
"It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be
Reversed."
The last sentence of the opinion reinforces that it was a violation in that case because the was the only rationale for the conviction. I'm saying in this case the rationale for "detaining" him was MKE's "combative" or "threatening" behavior. The state wasn't saying Cohen was being combative/threatening etc ...... Again, he was arrested without saying anything, he wasn't being threatening, just wearing a shirt. This case is different in that respect in my opinion, again this depends upon what actually transpired at the checkpoint.
In reading the Cohen v California decision a couple key aspects stand out to me. I found it here :
http://caselaw.lp.findlaw.com/script...l=403&invol=15
"At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished...."
"....for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses. In this vein, too, however, we think it important to note that several issues typically associated with such problems are not presented here."
The decision does provide that there are exceptions to when the First Amendment may be restricted and that in this case they do not address all of those issues.
"It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be
Reversed."
The last sentence of the opinion reinforces that it was a violation in that case because the was the only rationale for the conviction. I'm saying in this case the rationale for "detaining" him was MKE's "combative" or "threatening" behavior. The state wasn't saying Cohen was being combative/threatening etc ...... Again, he was arrested without saying anything, he wasn't being threatening, just wearing a shirt. This case is different in that respect in my opinion, again this depends upon what actually transpired at the checkpoint.
Sep 30, 2006, 12:49 pm
#1064
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Originally Posted by Bart
Haven't you been reading anything I've been posting? There is no TSA policy prohibiting what MKEbound did.
(OK - superfluous, confusion addressed).
Last edited by Wally Bird; Sep 30, 2006 at 12:51 pm Reason: I can't keep up !
Sep 30, 2006, 12:49 pm
#1065
FlyerTalk Evangelist
Join Date: Mar 2004
Location: Newport Beach, California, USA
Posts: 36,062
Originally Posted by Bart
Your emotional defensiveness continues to intrigue me. Maybe lawyers have changed over the years and become overly sensitive. Or perhaps I just worked with a different brand of lawyers.
I will not be pulled into a game of childish namecalling. I will, however, continue to highlight gross misstatements regarding constitutional rights by senior TSA supervisors who should know better. The fact that they do not does not bode well for this country.