Did TSA airport screeners violate free speech rights of bare-chested student?

In addition to the First Amendment claim, Tobey also accused the federal screeners of violating his Fourth Amendment rights by having him arrested by police when there was no probable cause to believe he had committed a crime.

In dismissing the Fourth Amendment claim, Judge Hudson said Tobey’s decision to take his clothing off was “bizarre” and that the screeners were justified in calling the police.

“Given the heightened security interest at airport security checkpoints, it was eminently reasonable for [the screeners] to seek assistance from the … police,” Hudson wrote.

The lawsuit also seeks to hold officials accountable for alleged false imprisonment and malicious prosecution.

Tobey’s case is being litigated by the Rutherford Institute, a civil liberties group based in Charlottesville, Va.

The dispute arose as Tobey sought to pass through airport security in Richmond on his way to his grandfather’s funeral in Wisconsin. He had anticipated that he might be selected for enhanced secondary screening at the security checkpoint. In preparation he wrote his chosen message on his chest and was prepared to partially disrobe in an apparent effort to communicate his objection to what he viewed as intrusive searches.

When he was, in fact, selected for secondary screening, Tobey removed his T-shirt and sweatpants, revealing the message on his chest. One of the screeners allegedly told him that removal of his clothing was not necessary. But Tobey allegedly replied that he was taking his clothes off to protest the checkpoint’s unconstitutional procedures.

The police were called. Tobey was led away in handcuffs and held for 90 minutes. Police allegedly threatened that they would make sure he had a permanent criminal record because of his actions. He was also informed that he would be transported to the county jail.

Police charged Tobey with disorderly conduct in a public place, an offense that carries a year in jail and a $2,500 fine.

Officials later backed down on their threat to take him to jail. Instead he was questioned by an air marshal with the joint terrorism task force concerning his “intentions and goals” and any involvement with terrorist organizations, according to the judge’s opinion.

Eventually, Tobey was allowed to board his flight. The disorderly conduct charge was later dropped.

He filed his lawsuit in March. A tentative trial date is set for Jan. 18.

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