RICHMOND, Va.— Attorneys for The Rutherford Institute have asked the U.S. Court of Appeals for the Fourth Circuit to let stand a First Amendment claim in Aaron Tobey v. Terri Jones, a case that arose when college student Aaron Tobey, engaging in a peaceful protest of the Transportation Security Administration’s (TSA) use of whole-body imaging scanners and enhanced pat downs, was arrested for disorderly conduct after removing his shirt at Richmond International Airport (RIC) and exposing a portion of the Fourth Amendment written on his chest. The Institute’s brief comes in response to a request by the U.S. government to have the First Amendment claim in the case be dismissed. Institute attorneys insist that government agents violated Tobey’s First Amendment rights by causing him to be arrested based on the message conveyed by his silent, nonviolent expression of objection to the TSA’s screening policies.
“Whether it be construed as different, unusual or bizarre, non-disruptive expressive protest—which is what Aaron Tobey engaged in—is at the core of protected First Amendment speech,” said John W. Whitehead, president of The Rutherford Institute. “As the courts have recognized, this fundamental right encompasses not only the affirmative right to speak, but also the right to be free from retaliation by public officials for speaking.”
On December 30, 2010, Aaron Tobey, then a student pursuing a degree in architecture, was waiting in line to pass through screening at Richmond International Airport when he removed his shirt to show that he had written on his chest part of the text of the Fourth Amendment (“The right of the people to be secure… against unreasonable searches and seizures, shall not be violated”), which protects the privacy of individuals by forbidding unreasonable searches and seizures by government agents. Despite not presenting a security risk, Aaron was arrested and handcuffed. Government agents from agencies including the Joint Task Force on Terrorism questioned Tobey for approximately 90 minutes before citing him for disorderly conduct, a Class I misdemeanor under Virginia law, which carries penalties of up to $2,500 and 12 months in jail. The Henrico County Commonwealth’s attorney eventually dropped the charges against Tobey.
Coming to Tobey’s defense, Rutherford Institute attorneys filed suit against the federal government in March 2011 in the U.S. District Court for the Eastern District of Virginia, charging that Tobey’s arrest and subsequent questioning without sufficient cause violated his Fourth Amendment right to be free from unreasonable searches and seizures and his First Amendment right to not be discriminated against based on the content and manner of his protest. In August 2011, U.S. District Judge Henry Hudson rejected the government’s motion to have Tobey’s First Amendment claims dismissed, ruling that Tobey’s civil rights would have been violated if the agents sought to silence Tobey’s expression. The government appealed that ruling in November 2011.