On The Front Lines
Victory: Affirming First Amendment Protections for Bizarre Speech, Fourth Circuit Sides with Rutherford Institute in Airport Stripper Lawsuit
RICHMOND, Va.— In a victory for the U.S. Constitution, a federal appeals court has upheld a First Amendment lawsuit brought by attorneys for The Rutherford Institute on behalf of college student Aaron Tobey, who was summarily arrested for engaging in a peaceful protest of the Transportation Security Administration’s (TSA) use of whole-body imaging scanners and enhanced pat downs at Richmond International Airport (RIC). In a 2-1 ruling in Aaron Tobey v. Terri Jones, the U.S. Court of Appeals for the Fourth Circuit rejected an appeal by TSA agents that sought to dismiss Tobey’s claim that the agents violated his free speech rights by calling police after Tobey removed his shirt and exposed a portion of the Fourth Amendment written on his chest. “Woven into our constitutional freedoms is the belief in autonomy and celebration of difference,” the court wrote. “For us to hold today that it is reasonable to cause an arrest due to bizarre behavior and nothing more would violate the most basic tenets of our Constitution.”
“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 Court of Appeals upheld that ruling, rejecting the TSA agents’ claim that Tobey’s rights were not clearly established. “It is crystal clear,” the court wrote, “that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it.” Anand Agneshwar and Alan Veronick of Arnold & Porter and James Knicely of Knicely and Associates assisted The Rutherford Institute in its defense of Tobey.
