A Stitch in Haste

Nope, wrong Kip:

Yesterday, while discussing the new rules a fellow Flyertalker suggested we write [TSA Director] "Kip Hawley is an Idiot" on the outside of our clear plastic quart bags. So I did just that.
...
The TSA guy ...went strait [sic] to the TSA Supervisor on duty and boy did he come marching over to the checkpoint with fire in his eyes!

He grabbed the baggie as it came out of the X-ray and asked if it was mine. After responding yes, he pointed at my comment and demanded to know "What is this supposed to mean?" "It could me a lot of things, it happens to be an opinion [of] mine." "You can't write things like this" he said, "You mean my First Amendment right to freedom of speech doesn't apply here?" "Out there (pointing pass the id checkers) not while in here (pointing down) was his response."

I had avoided this story given that it is strictly anecdotal (I had seen it on Fark), but Boing-Boing and Wired have picked it up too, and one part of the alleged exchange caught my eye:

I then repeated that the TSA Supervisor stated my First Amendment rights didn't apply at the TSA check point and I asked if he (the deputy) agreed that was the case. He responded by saying "You can't yell fire in a crowed theater, there are limits to your rights."

Have you ever watched daytime small claims television shows and hear a litigant insist that "the police told me..." only to have the judge snap back, "The police are not lawyers!" Same principle. A little knowledge is a dangerous thing, and a little knowledge by a TSA agent is downright, um, explosive.

I too learned "You can't shout 'Fire!" in a crowded theater." Of course, I learned it in high school, not law school. What I learned in law school was that this famous First Amendment observation by Justice Holmes in Schenck v. United States, 249 U.S. 47 (1919), while good analogizing, is not good law. Schenk was revised (and I would argue improved) by Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) and the "imminent lawlessness" test: speech is protected unless --

such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

So, the burden is clearly on the TSA to demonstrate how "Kip Hawley is an Idiot" written on a plastic bag is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Of course, such a burden could never be met.

Another good test in such circumstances is that of Cohen v. California, 403 U.S. 15 (1971): If there is a First Amendment right (and there is) to wear, in a courthouse, a jacket with "Fuck the Draft!" on the back, then anything less disruptive must also be protected speech. Think anyone at the TSA can make the case that "Kip Hawley is an Idiot" is worse than "Fuck the Draft!"?

I don't know whether Kip Hawley is an idiot. But if this story is accurately portrayed, then the TSA agents were certainly idiots for pretending that they know First Amendment law when they don't. And I suppose that in turn might make Kip Hawley an idiot for not crafting better guidelines for their agents to follow.

MAJOR UPDATE: The TSA has issued a statement acknowledging that their agents have no authority to act upon messages on toiletry bags. Follow-up commentary from the flyer here.