Federal Court Affirms Travelers Have A First Amendment Right To Record TSA Screeners

from the have-you-tried-not-being-assholes-all-the-time? dept

It's pretty clearly established you have the right to record public servants as they perform their public duties. There are a few exceptions, but for the most part, if you're not interfering with their work, record away. Public servants hate this, of course, but there's not much they can do about it. Sure, they can try to use local laws to shut down recordings, but those efforts have routinely been rejected by federal courts.

Enter the TSA and some agents who felt they shouldn't be recorded doing their work. The TSA may believe it's doing valuable national security work that can't be recorded by third parties, but it's actually doing nothing of the sort. There's nothing inherently secret about a pat down in the screening area, which is something that happens all the time and often can be observed by everyone else in the area.

The TSA agents in this case [PDF] felt they had a right to not be recorded. That's not actually a thing, as the court reminds them. (via the Volokh Conspiracy)

The plaintiff, Dustin Dyer, and his children cleared initial screening. Dyer's husband did not. TSA agents began their pat down of Dyer's husband and Dyer began his recording of them. He stood ten feet away recording the pat down. He did not interfere with the screening. Despite this, TSA agent Natalie Staton told Dyer his recording was "impeding" the agent performing the pat down. Dyer refused to stop recording so Agent Staton went and got her supervisor, Shirrellia Smith.

Smith also told Dyer he could not record the pat down. Agent Staton then asked her supervisor to "order" Dyer to delete his recording. Which he did.

Smith ordered Dyer to delete the video while Staton watched. "Dyer deleted the recording from his phone while [Staton] looked at the screen of his cell phone…"

The family was then allowed to leave. Staton recovered his deleted video. Then he filed this lawsuit.

The TSA claimed Dyer had no right to record TSA agents. It also said he had no cause of action and, even if he did, qualified immunity shielded the involved agents from this lawsuit.

The court disagrees. First, it points out the TSA's work isn't as essential as it thinks it is. It can't dodge a Bivens lawsuit by claiming some sort of national security exemption. The court says passenger screening does not implicate "diplomacy, foreign policy, or national security interests." Therefore, the TSA can't have the suit dismissed on those grounds. And that keeps Dyer's Fourth Amendment claim viable.

It also can't have it dismissed on qualified immunity grounds. As the court points out, the TSA's own policy allows passengers to record agents while they screen travelers.

Allowing damages in this case would not hamper TSA's efficacy; permitting individuals to record, from a distance, TSA agents performing their duties does not limit TSA agents' ability to screen passengers. Indeed, TSA policy allows individuals to record if they do not interfere with the screening process or record sensitive information.

The TSA argued (wait for it…) that because it does not train agents to respect the Constitution, agents can't be sued for violating Constitutional rights. Ridiculous, says the court:

Federal officials should not evade liability for constitutional violations because their employer has not provided adequate training.

Although Bivens has never been applied to First Amendment violations, the court chooses to apply it here because it's clearly established the public has a right to record public officials.

Courts across the country agree that incident to the "right to gather news," citizens have some right to record government officials performing their jobs. The Eleventh and Ninth Circuits recognize a broad right to record matters of public interest. The First Circuit acknowledges a right to record government officials engaged in their duties. Four other circuits recognize a narrower right to record a subset of government officials: law enforcement officers. Considering this growing consensus, this Court finds that the First Amendment protects the right to record government officials performing their duties.

[...]

[T]he defendants' demand that Dyer stop recording and delete the captured video plausibly constitutes an unreasonable restriction on the plaintiff's First Amendment right…

And the right is clearly established.

According to the Fourth Circuit, "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." Here, Dyer sought to record, from about ten feet away, the TSA conducting a pat-down search of his husband. The TSA agents directed him to stop. Dyer's allegations fall squarely within this "crystal clear" right.

It's well-established people can record public officials in public. Officials can't pretend this right doesn't exist just because they don't want to be recorded. This has been clear for years. The chain of events here did nothing more than convert these TSA agents from public servants to lawsuit defendants. None of this needed to happen. And none of it was justified.

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Filed Under: 1st amendment, dustin dyer, recording, transparency, tsa