The Volokh Conspiracy - Worn Circuit Boards as Art -- in Airports:

The AP reports:

An MIT student wearing what turned out to be a fake bomb was arrested at gunpoint Friday at Logan International Airport and later claimed it was artwork, officials said.

Star Simpson, 19, had a computer circuit board and wiring in plain view over a black hooded sweatshirt she was wearing, said State Police Maj. Scott Pare, the commanding officer at the airport.

"She said that it was a piece of art and she wanted to stand out on career day," Pare said at a news conference. "She claims that it was just art, and that she was proud of the art and she wanted to display it."

Simpson was charged with disturbing the peace and possessing a hoax device. A not guilty plea was entered for her and she was released on $750 bail....

I'm not sure quite what it means to say that this was "a fake bomb." I haven't seen a photo [UPDATE: thanks to reader rbj, here's a link], and I'm not sure whether the student intended the circuit board to make at least some people think for at least some time that there's at least some chance that the board was part of a bomb. Still, it does sound like the sort of thing that airport security people should investigate, just in case, and the sort of thing that should be prohibited in airports given the disruption that it's likely to cause.

Some people have asked whether bomb jokes of various sorts are constitutionally protected in airports. I think the answer is that they generally can be punished, even if they aren't intended to be threats. They would be false statements of fact said with reckless disregard of the possibility that they would be believed, and would thus fit within the same false statements of fact exception that authorizes punishment of libel, fraud, perjury, false statements to the police, and the like.

True, in most situations jokes are not punishable when it's clear to most people that the statement is probably a joke, and not a factual assertion. That's why parody and humor is protected against (among other things) libel or slander liability even when it's literally false. But in a context where security people have to react even to small risks that a statement is a factual assertion and not a joke, it makes sense to allow the prohibition of even slightly ambiguous jokes.

Here, though, it's not clear whether any such analysis would even be necessary (which is important for the government, since the student might have been subjectively unaware of the risk that her circuit board would be interpreted as part of a bomb; such subjective unawareness of risk would likely take her statement out of the criminally punishable false statements of fact category). Here's a relevant passage from Rumsfeld v. FAIR, the Solomon Amendment case:

Having rejected the view that the Solomon Amendment impermissibly regulates speech, we must still consider whether the expressive nature of the conduct regulated by the statute brings that conduct within the First Amendment's protection. In United States v. O'Brien, we recognized that some forms of "'symbolic speech'" were deserving of First Amendment protection. But we rejected the view that "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Instead, we have extended First Amendment protection only to conduct that is inherently expressive....

Unlike flag burning, the conduct regulated by the Solomon Amendment is not inherently expressive. Prior to the adoption of the Solomon Amendment's equal-access requirement, law schools "expressed" their disagreement with the military by treating military recruiters differently from other recruiters. But these actions were expressive only because the law schools accompanied their conduct with speech explaining it. For example, the point of requiring military interviews to be conducted on the undergraduate campus is not "overwhelmingly apparent." An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school's interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.

The expressive component of a law school's actions is not created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O'Brien....

Likewise, it looks like wearing a circuit board would not be treated as "inherently expressive" for First Amendment purposes.

Thanks to Victor Steinbok for the pointer.

	[Eugene Volokh, September 24, 2007 at 1:00pm] Trackbacks Worn Circuit Boards as Art -- in Airports: The AP reports: An MIT student wearing what turned out to be a fake bomb was arrested at gunpoint Friday at Logan International Airport and later claimed it was artwork, officials said. Star Simpson, 19, had a computer circuit board and wiring in plain view over a black hooded sweatshirt she was wearing, said State Police Maj. Scott Pare, the commanding officer at the airport. "She said that it was a piece of art and she wanted to stand out on career day," Pare said at a news conference. "She claims that it was just art, and that she was proud of the art and she wanted to display it." Simpson was charged with disturbing the peace and possessing a hoax device. A not guilty plea was entered for her and she was released on $750 bail.... I'm not sure quite what it means to say that this was "a fake bomb." I haven't seen a photo [UPDATE: thanks to reader rbj, here's a link], and I'm not sure whether the student intended the circuit board to make at least some people think for at least some time that there's at least some chance that the board was part of a bomb. Still, it does sound like the sort of thing that airport security people should investigate, just in case, and the sort of thing that should be prohibited in airports given the disruption that it's likely to cause. Some people have asked whether bomb jokes of various sorts are constitutionally protected in airports. I think the answer is that they generally can be punished, even if they aren't intended to be threats. They would be false statements of fact said with reckless disregard of the possibility that they would be believed, and would thus fit within the same false statements of fact exception that authorizes punishment of libel, fraud, perjury, false statements to the police, and the like. True, in most situations jokes are not punishable when it's clear to most people that the statement is probably a joke, and not a factual assertion. That's why parody and humor is protected against (among other things) libel or slander liability even when it's literally false. But in a context where security people have to react even to small risks that a statement is a factual assertion and not a joke, it makes sense to allow the prohibition of even slightly ambiguous jokes. Here, though, it's not clear whether any such analysis would even be necessary (which is important for the government, since the student might have been subjectively unaware of the risk that her circuit board would be interpreted as part of a bomb; such subjective unawareness of risk would likely take her statement out of the criminally punishable false statements of fact category). Here's a relevant passage from Rumsfeld v. FAIR, the Solomon Amendment case: Having rejected the view that the Solomon Amendment impermissibly regulates speech, we must still consider whether the expressive nature of the conduct regulated by the statute brings that conduct within the First Amendment's protection. In United States v. O'Brien, we recognized that some forms of "'symbolic speech'" were deserving of First Amendment protection. But we rejected the view that "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Instead, we have extended First Amendment protection only to conduct that is inherently expressive.... Unlike flag burning, the conduct regulated by the Solomon Amendment is not inherently expressive. Prior to the adoption of the Solomon Amendment's equal-access requirement, law schools "expressed" their disagreement with the military by treating military recruiters differently from other recruiters. But these actions were expressive only because the law schools accompanied their conduct with speech explaining it. For example, the point of requiring military interviews to be conducted on the undergraduate campus is not "overwhelmingly apparent." An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school's interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else. The expressive component of a law school's actions is not created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O'Brien.... Likewise, it looks like wearing a circuit board would not be treated as "inherently expressive" for First Amendment purposes. Thanks to Victor Steinbok for the pointer.