Constitutional Law - Free Speech - Sixth Circuit Holds That Civil Penalties Imposed for Interfering with Airport Security Screeners through Use of Loud and Profane Language Do Not Burden First Amendment

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CONSTITUTIONAL LAW--FREE SPEECH--SIXTH CIRCUIT HOLDS THAT CIVIL PENALTIES IMPOSED FOR INTERFERING WITH AIRPORT SECURITY SCREENERS THROUGH USE OF LOUD AND PROFANE LANGUAGE DO NOT BURDEN FIRST AMENDMENT.--Rendon v. Transportation Security Administration, 424 F.3d 475 (6th Cir. 2005).

"It's not what you say, but how you say it" may provide a keen adage for the Dale Carnegie set, but it seems like a treacherously slippery test for adjudicating First Amendment claims. Nonetheless, constitutional scholars and weary travelers alike should pay heed. Recently, in Rendon v. Transportation Security Administration, (1) the Sixth Circuit upheld the constitutionality of civil penalties imposed on an airline passenger who used loud and profane language while protesting airport security procedures and screening delays. The panel reasoned that by prompting a security screener to shut down a checkpoint to retrieve his supervisor, the passenger "interfered" with security procedures in violation of Transportation Security Administration (TSA) regulations. While the panel may have been understandably motivated by concerns of airport security and efficiency, it failed--in its strikingly short opinion--to define clearly the boundary between permissible and impermissible speech with regard to airport regulations. In the panel's defense, the distinction between protected speech and "interference" is inherently subjective and blurry. But Supreme Court precedent, most notably City of Houston v. Hill, (2) suggests that adding scienter and notice requirements could cure this defect and prevent the vagueness and overbreadth challenges stemming from it.

On July 27, 2002, Michael Rendon walked through a Cleveland airport metal detector en route to his flight. (3) When the detector's alarm sounded, Rendon removed his watch and turned to walk back through the detector. Security screener Richard Pindroh notified Rendon that he was not permitted to do so and needed to wait to be hand-wanded. (4) Rendon, frustrated by the potential delay, exclaimed that this procedure was "fucking bullshit." (5) While Pindroh resumed screening other passengers, Rendon waited to be hand-wanded and grew exasperated. (6) He cursed loudly to protest the delay, to which Pindroh responded that Rendon did not need to use profanity. (7) Rendon retorted that, if profanity offended Pindroh, he was "in the wrong line of work and ... should consider living in a bubble." (8) Rendon added that he had a "First Amendment right to say what he wanted." (9) Pindroh then shut down his screening line and retrieved his supervisor. (10) When the supervisor arrived, Pindroh told him that Rendon was being "uncooperative, unruly, and using loud profanities." (11) Soon after, a police officer removed Rendon from the screening area. (12) The TSA assessed a $700 fine against him for violating the TSA's "Prohibition Against Interference with Screening Personnel" (13) by "interfering with" and "intimidating" airport screening personnel. (14)

After a hearing, Judge Brudzinski, an administrative law judge (ALJ), upheld the penalty. (15) Judge Brudzinski found that Rendon "began arguing ..., using profanity and causing commotion until screening personnel stopped operation of the screening checkpoint." (16) From these facts, Judge Brudzinski drew two conclusions of law: First, Rendon "disrupted the operation of the security checkpoint." (17) Second, Rendon "intimidated" Pindroh by "putting him in apprehension of immediate battery." (18)

On administrative appeal, the Deputy Administrator for the TSA--the delegated agency decisionmaker for appeals--partially upheld the ALJ's decision. (19) The Deputy Administrator agreed that Rendon's behavior was disruptive, concluding that a screening agent would not halt a checkpoint "out of whimsy" and that, therefore, Rendon impermissibly interfered with TSA operations. (20) The Deputy Administrator rejected, however, the conclusion of law regarding intimidation, agreeing with Rendon that no evidence supported this charge. …

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