free speech and airport security

I’ve started a bit of a conversation about whether somebody can be arrested for making comments in an airport.  the specific comments made by caroline were “do i look like a terrorist?” she was heard by airport officials and nearly arrested.  although i do sympathize with her going through that, saying something out loud like that in an airport is probably going to get you in some kind of trouble.  she told me that if i could come up with a law concerning the aforementioned issue, she’d write a new post.  i don’t want her to write a new post but this is what i’ve found on the issue.   

The Incitement Test (Brandenburg)

“The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

 And, according to The First Amendment Center,

I’ve been told you can’t mention or even joke about weapons or bombs in an airport or on a plane. Does that rule violate the First Amendment?  

What you’ve heard is right — if you joke about having a weapon or a bomb at the airport or on an airplane, you can be prosecuted. Moreover, no court has ever held that such laws violate the First Amendment.

These laws don’t punish you for joking about a bomb, exactly. They punish you for threatening to do something against the law or for saying that you know somebody who is going to do something against the law, when you really don’t. Some courts, however, have ruled that “just joking” about a bomb will result in only a light penalty, while making a serious, though false, bomb threat will result in a much heavier one.

Regardless, just as you shouldn’t yell “Fire!” in a crowded theater that is not ablaze or make a false report to the police, you definitely shouldn’t even joke about bombs or weapons when you’re at the airport or aboard an airplane.

Obviously, the examples more directly refer to threats or jokes about bombs and terrorism.  However,  I would argue that sarcastic self-reference as a terrorist probably falls under the outlined speech that can be considered threatening to an airport employee (in the eyes of said employee).  That doesn’t mean I think it would necessarily stand up in court, though.


13 Responses to “free speech and airport security”

  1. I’m a bit lost here. Are you for or against such laws?

  2. “However, I would argue that sarcastic self-reference as a terrorist probably falls under the outlined speech that can be considered threatening to an airport employee, particularly concerning our current climate. ”

    -Kind of a stretch…but hey…Bush and Co. would certainly agree!

    -How about having a “terrorist” appearance? I know that one’s appearance does not result in prosecution — but it now does warrant greater scrutiny and monitoring.

    One could follow all the rules, have all of the necessary paper work & documentation, be polite and courteous with all airport security officials — but if your name is “middle-eastern” sounding or you have a certain skin tone….
    you’re basically screwed.

    interesting post. thanks!

  3. i’m very pro-free speech. i think that the reaction to caroline’s comment was a bit absurd. i don’t think that it’s absurd to question somebody that qualifies under the incitement test (which i am sure she did not). arresting them is a different issue. also, racism and profiling used by security seriously undermines the legitimacy of detaining people. caroline, however, is a skinny white twenty-something so in this particular case it’s less the point than it might have been. all of that said, everybody goes through security at airports (which ought to take care of anybody that’s not kidding about being a terrorist/having a bomb – and who would actually joke about that if they had violent intentions???), and i’m sorry to say that it’s not what it might be. i fly a lot and have, since the “liquids” ban, both intentionally and unintentionally taken contraband onto both domestic and international flights (even through the UK and EU) and never been stopped for it. once in milan, when i actually did get caught with contraband, it was handed right back to me and i was asked not to do it again. the whole system is messed up…and not just the airport system.

  4. and abu ameerah…sorry…i posted my last response before i read your comments. you’re right, i come off sounding really conservative. sorry about that. i was less sympathetic to caroline because i know her pretty well and know that if she was stopped it probably wasn’t because of some kind of profiling, and ended up generalizing more than i meant to. my argument with her was more on the technical aspects of whether it’s a violation of her first amendment rights to stop/question/arrest her for comments (according to the courts) than whether, ideologically, it’s okay that it happened. that’s why i was sourcing supreme court rulings and first amendment advocacy sites in my post.

  5. I still say I was in the right and TSA can suck it, because technically I didn’t say I either knew a terrorist, had a bomb, or knew someone who did. Really interesting stuff though. My guess is, if they had arrested me and the case had been brought to court, I would still lost all in the name of a terrorism-free country. That’s bullshit…probably the luckiest I would have gotten was to have the ACLU defend me for free. 🙂 🙂 🙂 Thanks for the research! When I’m back in town I will certinaly uphold my end of the bargain and post a rebuttle which will include a link to this post.

  6. By the way, for our flight back, I plan on carrying on shampoo. We’ll see what happens.

  7. Are you kidding? Are you hoping to get arrested, for the experience??? Call me excessively obedient, but it seems like you are begging for trouble.

  8. i love it when you guys have converations online. 🙂 the whole issue is fascinating.

  9. mermaid mom Says:

    Help me out here, Manda. Tell her to mind her mom like she used to when she was 6. Or at least 3.

  10. ‘line, i think your mom IS giving you solid advice 🙂 not poking airport security with a stick (figuratively but also not poking them is a good idea literally) is probably the best way for you to get BACK to roland on monday without taking a detour to a back room. plus i’m betting josh would rather not have to worry about you like that again. let me know if you do something though and this blog can be used against you in court…

  11. Muuuthhhherrrrr….


    I’m not telling.

  12. […] recommend reading her post first, but I’m going to steal a few lines from […]

  13. mermaid mom Says:

    Ok, Manda, you just piled up a few brownie points in the Kan. Next time you come you get some extra Rainbow Jello.

  14. I’m a little behind here, but Caroline, come on. I’m with yo momma here.

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