It is possible that the plaintiff in this case behaved like a jerk and deserved the $700 fine imposed on him by the TSA. It is also understandable that the Court has sympathy for TSA screeners, who may just have one of the worst jobs in the world. Be that as it may, the Sixth Circuit produces an opinion that shows little regard for the First Amendment.
According to the opinion, the plaintiff was trying to rush through the security line at an airport, but the metal detector went off. The screener thought it was probably the plaintiff's watch, but would not let him walk back and through the detector; instead, he had to wait for someone with a hand-wand to screen him. The plaintiff was late for a plane, so he started getting a bit antsy, and said a few things he should not have said. The opinion lists the plaintiff's worse outbursts as "this is bullshit, man" and "if you don't like profanity, you are in a wrong line of work." Eventually, the screener had it, so he called the supervisor, who called a cop, and the guy was removed from the screening area. I am guessing he probably missed his plane, too. Not a good day for him.
At issue in the case is constitutionality of 49 C.F.R 1540.109, which prohibits "interfering with, assaulting, threatening, or intimidating screening personnel in the performance of their screening duties." The court concludes the regulation was not content-based, as applied to the plaintiff, because it prohibited conduct (interfering with a screener). With all due respect to the Court, I just don't see what conduct (as opposed to speech) was punished. The most can be said about the plaintiff's behavior was that he was loud and using profanities. If that is interference, I do not see what speech directed to a screener would be allowed under these circumstances.
Furthermore, at least as applied in this case, the regulation seems vague. According to the Court, good-faith grumbling about TSA is o.k., even laced with profanities, but speech resulting in interference with performance of duties is prohibited. Unlike the Court, I am not entirely clear where the imaginary line between allowed speech and prohibited conduct would lie in that situation. Like the plaintiff, I read the regulation as saying that whenever speech gets to the TSA screener to a point where he or she are annoyed and could no longer due their job, it rises to a level of interference. But isn't that a textbook definition of constitutional vagueness?
Thanks to How Appealing for reporting about this case.
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