FoxNews reports — citing Agence France-Presse — that "A man who was forced to cover a shirt displaying Arabic writing during a JetBlue domestic flight three years ago was awarded $240,000 in damages." This is Raed Jarrar, who was allegedly "approached by [TSA] security officials who told him to remove his T-shirt with the words 'We will not be silent' as he waited near the front of a JetBlue flight at JFK Airport because it apparently made other passengers feel uncomfortable." Two thoughts:
1. If the facts are as the complaint alleges (and they may well be), then this strikes me as pretty clearly unconstitutional action by the government: Jarrar was ordered by government agents to refrain from engaging in certain speech simply because some people were made "uncomfortable." That strikes me as a pretty clear violation of either the First Amendment or the equal protection component of the Due Process Clause.
To be sure, the restriction was based on the language in which the message was written, and not based on the meaning of the sentence. But either the restriction was based on the inference that the wearer was an Arab, or based on the symbolic statement that he identified as an Arab or sympathized with Arab speakers. In either case, it would be unconstitutional, again if the facts were as Jarrar alleged.
2. I think it's a mistake to say that Jarrar "was awarded $240,000 in damages." "Awarded," I think, implies a court order based on a judgment that the plaintiff was legally in the right. (Likewise, as reader Victor Steinbok suggests, as to the FoxNews.com references to "the decision" and, to a lesser extent, to "reparations." I suppose "decision" could refer to a decision to settle, but that's not what it usually means in discussion of an "award," and in the absence of a specific reference to settlement.)
What happened here is simply a settlement of a lawsuit "expressly on the basis of no admission of liability or fault or wrongdoing or responsibility ..., any such liability or fault or wrongdoing or responsibility being expressly denied by Defendants." So it may well be that Jarrar was wronged, and the defendants settled because they were afraid that this would indeed be so found in court. Or it may be that they thought they were in the right but didn't want to spend more money, time, or effort at this, or to the run risk of losing at trial (even if they thought they should win). One way or another, there was no decision by the court on the merits. And I don't think that "was awarded $240,000 in damages" is likely to reliably convey to readers what actually happened here.
To their credit, the New York Post, the New York Times City Room blog (citing the New York Post), and the Washington Post correctly described this as a settlement.
1. If the facts are as the complaint alleges (and they may well be), then this strikes me as pretty clearly unconstitutional action by the government: Jarrar was ordered by government agents to refrain from engaging in certain speech simply because some people were made "uncomfortable."
Er ... all of us are asked/forced to do things in airports just so that others won't feel "uncomfortable". I find the context-free analysis, here, to be quite stunning. On top of the fact that all of us are extremely discomforted by the desire to apply "equal protection" (the most ill-used and abused Constitutional argument of the modern era) and not hone in on those who are actually higher risks.
P.S. Anything that would cause so much discomfort among normal folks in the airport is most certainly a safety concern. But, I'll try to keep an open mind the next time I have to get to the airport hours before and be put under uncomfortable conditions in order that "equal protection" can be preserved ...
I guess you would also defend someone who kept saying "Allahu Akhbar, Death to America" during a flight. The discomfort of the other passengers are nothing in comparison to Free SPeech and Equal Protection, right?
That strikes me as a pretty clear violation of either the First Amendment or the equal protection component of the Due Process Clause.
Please. Law in a vacuum is not a pretty sight.
I could certainly see some government action justified by such a statement. What I can't see is "please stop saying that, it makes people uncomfortable". That's a pure heckler's veto, isn't it?
Without doubt, when someone says something that gives law enforcement officials probable cause to believe he's engaged in a criminal enterprise, they can arrest him for it, whether it's "Death to America" or anything else. They can certainly investigate him based on that, or less. But when they tell him to stop saying certain things, without any evidence whatever that he's engaged in a criminal enterprise, simply because some people are worried about anyone displaying any text in Arabic, well, yes, the Constitution does come into play.
Assume that the TSA defends its actions simply and entirely by saying, "We targeted him based solely on the fact that (1) he was wearing a shirt with Arabic script; and (2) other passengers were made uncomfortable by his wearing of the shirt." A First Amendment challenge is not open and shut. Presumably the TSA officials could not read Arabic, meaning that their actions were not motivated by the content of the message on Raed's shirt. Therefore Raed would need to assert that the script itself, regardless of content, constitutes symbolic speech, like a peace symbol, or that wearing a shirt with arabic writing on it constitutes symbolic conduct, like burning a draft card. This is a big step in itself - query whether we would consider someone wearing a shirt written in Elvish or some private language to be engaged in symbolic speech, or more precisely, whether the content of a symbolic message must be understood by a critical mass of "listeners" in order to count as speech. But assuming that wearing a shirt with Arabic script is symbolic speech, then either way the proper test is O'Brien, and that's a close call in this case. The government has an important, content-neutral interest in avoiding disruptions and possible altercations aboard its planes (regardless of the unreasonableness of the fears or misapprehensions of the passengers), so the question may well be whether removing Raed in this instance prohibited more speech than was essential to further that interest. Which re-begs the question of just how much "speech" there was to restrict in the first place...
Similarly, for equal protection purposes, while the act of wearing shirts bearing Arabic script may have some sort of correlation with the racial identity of the wearer, it is hardly a proxy for race. Given that the Supreme Court has held that rules targeting Spanish-language speakers are race-neutral (i.e., that language proficiency is not a proxy for race), see Hernandez v. New York, it is hard to see how rules targeting those who wear shirts bearing script in a particular language would classify impermissibly on the basis of race. What the TSA defense presents is a classic race-neutral rule (or action) with a racially disproportionate impact. Raed would need to demonstrate some sort of racial animus or intent on the part of the officials to prevail on an equal protection claim, see Washington v. Davis. But if the TSA were to hew to the justifications I posited at the beginning of this comment, then the claim would fail.
Of course it's impossible to ignore that Raed was Arabic, that his shirt was in Arabic, and that he was attempting to board an airplane. But many racial profiling cases featuring similarly powerful circumstantial evidence founder for the reasons I've outlined. So I'm surprised at the settlement.
Sorry, but absolutely no one but a lawyer, and not many of them, could take this fig leaf seriously.
You yourself concede that TSA's action was likely unconstitutional. Further, because the message was written in Arabic, it might well have said "Allah bless the USA," with the same result.
In short, by far the likeliest explanation is that, "Jarrar was wronged, and the defendants settled because they were afraid that this would indeed be so found in court."
There you go again, expecting the press to write with precision and accuracy. You've got to get over that delusion, EV, or you'll just continue to be disappointed.
I guess I should have let my example at "Allahu Akhbar", but ... no, I'm not troubled at all by my implication that the arabic language is, itself, suspicious in this day and age. This is the context of the world we now live in, no matter how much people may try and claim that arabic bears no more relation to terrorism (especially in planes!) than other languages. Arabic has taken on a new meaning, thanks to the war that the arab/persian/muslim enemies have been waging against civilization, and us specifically, the same way that a swastika took on a new meaning with the Nazis.
Now, if the guy were just walking down the street in his arabic t-shirt, that is one context, but when we are discussing airports and planes, we have a whole different situation - and a situation in which I have many of my normal rights restricted (because, mostly, of the acts of arabic speakers, as it turns out).
I cannot be forced to take my shoes off, throw my lighters out, .... and then cry because some guy was asked to not wear an arabic t shirt onto a plane. The security considerations behind the taking of my lighters are silly, and no less so than asking someone not to advertise arabic on a flight. The Constitutional questions about free speech and equal protection are not applied to me (who must suffer because of the acts of others) but they kick in when someone does something that most Americans would generally consider wrong for the situation.
The point is that all of us have many of our rights restricted when we fly, often times unfairly and stupidly, but we accept these problems because we have no desire to destroy the system and endanger everyone just to satisfy ourselves.
What if you overheard two people speaking Arabic on the plane -- should they be ordered to speak English instead?
If they are asked to stop speaking arabic on the plane then they should comply. As I said above, no matter how much one tries to deny it, arabic occupies a special position in today's world, and it is not a good one. That's just a fact and no amount of "equal protection"ing can change that. You cannot treat arabic like every other language and still maintain ties to the realities of today.
Without doubt, when someone says something that gives law enforcement officials probable cause to believe he's engaged in a criminal enterprise, they can arrest him for it, whether it's "Death to America" or anything else. They can certainly investigate him based on that, or less. But when they tell him to stop saying certain things, without any evidence whatever that he's engaged in a criminal enterprise, simply because some people are worried about anyone displaying any text in Arabic, well, yes, the Constitution does come into play.
Like I said, I have my lighters taken away (just for one simple example) without my being accused or even suspected of using them for any criminal enterprise on the plane. What's the difference? It certainly has nothing to do with lighting bombs and things, since the shoe-bomber used matches. But I accept it because it is a small sacrifice. Not wearing a t-shirt with arabic, on an airplane or in an airport, is also a small sacrifice. Flying on airplanes is not a right, after all.
Eugene, in the end, I have to wonder if it is your contention that arabic is no different than any other language with respect to terrorism, and Americans' perception of it? Because that is what your Equal Protection argument would certainly have to rest on.
Not exactly. Just because someone says that they are uncomfortable with something doesn't mean that others are going to agree or that the flight attendant/TSA worker is going to act on that. There is a degree of the heckler's veto to my comment, but not in the sense that any single person claiming discomfort is grounds for taking action. I am running on the assumption that it (whatever the act or situation is) would upset many and cause actual disruptions.
But ... it still comes down to a point of discretion on the part of the person finally broaching the subject and we can always run into problems with people's personal judgements, so the heckler's veto could occasionally apply. As it stands now, you and I have to wait extra hours (a real cost) and have our insides photographed before we are allowed to board a flight because of the actions of a very few, combined with our judiciary's desire to be holier than thou in all respects imaginable.
said " We will not be silent" in English and in Hebrew?
Then there's the TSA, which apparently decided Jarrar wasn't enough of a threat to be kept off the plane, but his shirt was.
The plaintiff's bar knows well where each type of business's threshold of pain is and settles accordingly. The attorney walks off with a third to a half of the settlement for writing a few letters (where the facts are extremely weak for his case, he may have to do some depositions, etc.).
Insurance companies dance this three-letter minuet with ambulance chasers daily. It's just a cost of doing business... the underlying facts of the case are not a factor (not that the lawyer will represent them honestly, in any event). The insurers have a duty to their stockholders which means that defending even successfully, even against the most patently frivolous lawsuit, is usually a loser.
It's extortion, but it's legal extortion because the lawyers run it, and like everything they run, they run it for their own benefit, all others be damned.
And it won't stop there. Why should you let everyone on a plane wearing a turban? Many people think that turban = Arab = Muslim = reasonable suspicion of terrorist threat. Never mind that the guy is probably a Sikh and not an Arab or a Muslim at all; that's a elitist Ivy-League distinction. Jimmy Joe-Bob Airport-Pantswetter ain't never heard of no Sikh, but he knows an Ay-rab when he sees one. Since we've decided to indulge every possible subjective fear, no matter how arbitrary, capricious, and sub-moronic it is, how can you possibly expect passengers to be comfortable with a Sikh on board?
Or a Jew, for that matter. I mean, at least any sort of "overt" Jew potentially upsetting to the aforesaid Jimmy Joe-Bob. An Orthodox Jew praying on a plane may not be an Arab, but apparently he's Arab-ish, or something.
I would say to make an exception for religion. If he's required by his religion to pray on a plane, then let him. If not, and if it really bothers people, then tell him not to do it. As pointed out above, we prohibit all sorts of arbitrary things on planes for less reason than this.
And I'm not aware of any religious requirement that people speak Arabic on planes (except maybe if he's on a plane at prayer time, in which case, sure, let him pray in Arabic).
Fine with me. The point I'm trying to make is that there are times when you need to take a stand and there are times when you need to just let it go. In my opinion, this was a time to let it go. If TSA had asked someone to remove a burkha or turban, I'd be perfectly fine with the person taking a stand. (Yes, I'm line-drawing. I realize others may not like my drawings.)
If the choice is between a right to make other people upset and a right not to be made upset by others, I'll choose the former every time. I'm pretty sure that's what the Constitution mandates.
David Schwartz:That's exactly what a heckler's veto is --
Not in my book. A heckler's veto is a single person forcing their personal desires on all, regardless of what anyone else thinks. Someone who speaks up for others is not a heckler.
I think we are talking about different hecklers, here. The arabic shirt wearer/speaker is the one being shut up BY the "heckler" who claims offense, and exercises the "veto" to stop the shirt-wearer's expression. ... Unless you are calling the arabic shirt wearer the heckler, which is perfectly fine to do, though misplaced in this discussion and rendering the question of the "heckler's veto" moot.
If I have something wrong here (not being a lawyer and all) then please explain the question posed to me about the "heckler's veto" in plain English, detailing the roles of the three entities (the arabic wearer, the person asking that it be taken off, and the rest of the people), because it only makes sense the way that I interpreted it.
Patrick Henry said that, right?
That said, I stand by my responses, with the caveat that I am using a literal meaning for the term, "heckler's veto", and not the legal one. I should have looked the term up before, but I never imagined that lawyers could have so twisted a simple term to give it a meaning totally divorced from ordinary English and common experience.
I wish all of you would defend the second amendment with the same blind veracity with which you defend the first. But I know you won't. Hypocrits!
Sorry that you feel this is twisting the English language. Since Latin fell out of favor, lawyers and courts are reduced to using English words to describe legal concepts. The results are often misleading to non-lawyers, but the alternative is to use the full definition each time, and we lawyers already kill too many trees to make our paper.
If you think heckler's veto is a twisted use of English, grab a legal dictionary (not a standard dictionary) and look up consideration, volunteer and protest.
Then look up acceptance -- not the definition concerning offers, but the definition concerning commercial paper. It will give you a whole new perspective on "We do not accept checks."
Of course there is a literal meaning to "heckler's veto": A single heckler exercising a personal veto (via heckling) over a performance.
By your standards, my friend's doctor must have been wrong when she diagnosed him as having athlete's foot, given that he is not athletic and had it on both feet, not just one.
What are you talking about? Phrases can have meaning even upon their first use. Unless you are saying that every combination of words you use has been used before and known to the person you are speaking to ... The phrase "heckler's veto" is one that could fit into any normal conversation with most English speakers understanding its meaning - its standard meaning in English - which is the one I had first assumed.
By your standards, my friend's doctor must have been wrong when she diagnosed him as having athlete's foot, given that he is not athletic and had it on both feet, not just one.
Huh? The doctor is using a medical term that may well be misunderstood by someone who is not familiar with that use. So what? Does that mean that there is not meaning to the term "athlete's foot" in standard English? No, it doesn't.
Of course, in standard English, the term "athlete's foot" would often have an article (e.g. "he has an athlete's foot") as opposed to the medical term ("he has athlete's foot"), which would give any decent English speaker the clue they need to understand the idiomatic use of the expression as a medical term, since "he has athlete's foot" would be grammatically incorrect in standard English. Right? This is not the case with the "heckler's veto" phrase.
I'm not sure what point you are trying to make, here. Like I said, if the legal whizzes used "hecklers' veto" then most of these problems disappear. Don't blame me because lawyers put the apostrophe in the wrong place and stuck with it.
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