So holds today’s Tobey v. Jones (4th Cir. Jan. 25, 2013):
Mr. Tobey waited until there was a short line at the TSA screening checkpoint and then commenced the screening process by presenting his boarding pass and identification to the pre-screening agent. Mr. Tobey proceeded to the conveyor belt area and placed his belt, shoes, sweatshirt, and other carry-on items on the conveyor. Mr. Tobey was then diverted by Appellant-Agent Smith from the standard metal detector used as the primary screening apparatus to the AIT scanning unit for enhanced screening.
In anticipation that he might be subjected to enhanced screening, Mr. Tobey had written the text of the Fourth
Amendment on his chest as he believed AIT scanning was unconstitutional. Before proceeding through the AIT unit, Mr. Tobey calmly placed his sweatpants and t-shirt on the conveyor belt, leaving him in running shorts and socks, revealing the text of the Fourth Amendment written on his chest. Agent Smith advised Mr. Tobey he need not remove his clothes. Mr. Tobey calmly responded that he wished to express his view that TSA’s enhanced screening procedures were unconstitutional.
Tobey was handcuffed and arrested for “creating a public disturbance,” and later sued, claiming this violated the Fourth Amendment, and also violated the First Amendment because it constituted retaliation for his display of the Fourth Amendment and statements related to that. The panel majority concluded that Tobey’s First Amendment claim could go forward, and that if he proved his version of the facts — including that he was arrested because of his speech — he would prevail. (The panel majority also suggested that the arrest may have violated the Fourth Amendment: “Even conceding that Mr. Tobey’s behavior was ‘bizarre,’ bizarre behavior alone cannot be enough to effectuate an arrest. If Appellants caused Mr. Tobey’s arrest solely due to his ‘bizarre’ behavior, Appellants’ cannot be said to have acted reasonably.” But the trial court had granted defendants qualified immunity as to that claim, and Tobey has not yet had a chance to appeal that decision.)
That sounds right to me, but it’s not clear whether Tobey would ultimately prevail: The question would be whether Tobey was arrested because the officials thought his undressing suggested something dangerous was afoot (no First Amendment violation, even if it’s a Fourth Amendment violation) or because of his display of the Fourth Amendment and accompanying speech (which would make the arrest a First Amendment violation). In any case, if you’re interested, check out the long and detailed majority and dissenting opinions.
Thanks to Phillip Carter for the pointer.
UPDATE: I’m afraid I erred (twice, sorry to say) about the status of Tobey’s Fourth Amendment claim. The court did suggest, as I note above, that the arrest was unconstitutional, but because Tobey has not yet appealed the district court’s grant of qualified immunity to defendants on this claim, that issue was not before the court. My apologies for the error, and thanks to the reader who called it to my attention.