Aaron Tobey had the text of the Fourth Amendment written on his chest as he went through an airline security checkpoint two years ago in Richmond. He was soon detained, arrested and charged with disorderly conduct. State prosecutors later dropped the case.
Tobey sued in Alexandria federal district court, alleging speech and detention constitutional violations. A trial judge dismissed the Fourth Amendment claims but kept alive Tobey's allegation that the authorities retaliated against him for exercising First Amendment rights.
Today, a federal appeals court declined to overturn the trial judge's ruling in a lengthy, divided opinion that explored the scope of protected speech in the sometimes-tense environment of an airport security checkpoint.
The appellate court decision means Tobey's claims under the First Amendment can proceed in the trial court. The ruling, however, doesn’t necessarily mean he will win the case. Lawyers for TSA, represented by the U.S. Justice Department, had argued there was no violation and that, assuming Tobey had a valid claim, the defendants are immune from suit because the speech right wasn't clearly established.
Writing for the majority, Judge Roger Gregory, joined by Judge Allyson Duncan, said it is "crystal clear that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it."