How Many Times Must TSA Be Spanked for Illegally Prohibiting Filming?

Michael Williams, traveling through EWR airport in Newark, N.J. a few days ago, was surprised when TSA screeners gave him a hard time for photographing his own belongings, and then threatened to have him arrested when he recorded the TSA screeners and managers themselves:

The video starts with Mr. Williams explaining his situation to a blue-shirt screener, and then 2 supervisors in suits walk up to him, and decree the following:

Listen, I’m not here to argue with you.  I’m telling you what we’re supposed to do.  I’m the lead terminal manager, and no, you are not allowed to take pictures of my officers.  [If] my officer feels uncomfortable with you taking pictures because you are interfering with the screening process, my officer is correct, and you are wrong.  Ok?  Clear?”

The threat of arrest comes off-camera after Mr. Williams starts walking away, but the damage to his constitutional rights has already been done even without that threat: Mr. Williams’ taping was protected both by TSA rules and the First Amendment.

Some areas of the law are gray areas.  Others are perfectly clear.  Whether photography is allowed at TSA checkpoints is one of those that is perfectly clear.  From the TSA’s Web site:

“We don’t prohibit public, passengers or press from photographing, videotaping, or filming at screening locations. You can take pictures at our checkpoints as long as you’re not interfering with the screening process or slowing things down. We also ask that you do not film or take pictures of our monitors.”

I contacted the TSA for comment on Mr. Williams’ video, and it was also perfectly clear to TSA Press Secretary Lisa Farbstein:

Hi Jon. Your inquiry was forwarded to me for response. Indeed individuals are permitted to film the checkpoint and the TSA officers who are working. The individual who [Williams] encountered will be reminded of that fact. Thank you for bringing it to our attention.

Even if the TSA didn’t want to allow photography at its checkpoints, doing so is probably First Amendment-protected speech that they cannot ban anyway:

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” … The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles.

Glik v. Cunniffee, 655 F.3d 78 (1st Cir. 2011) (internal citations omitted).  The U.S. Court of Appeals for the Third Circuit, which encompasses New Jersey, agreed earlier this year.

This kind of nonsense happens all the time, including to me.  Incidents of people being denied the right to take pictures or video are fastidiously documented by Photography Is Not A Crime (PINAC), and their archive of TSA abuse in this realm is well-populated.  It sounds like the TSA needs to be sued over this, and they should probably be careful considering that I’ll have my license to practice law before the statute of limitations for this matter will expire.

In the meantime,  at the least we can get a laugh out of the end of the video.  The supervisor who came to tell him he could not film apparently doesn’t realize the passenger is still recording until the end, leading to this gem when the passenger says he’s going to forward video to the “FSD” (Federal Security Director — basically a high-level regional TSA director):

I hope you’re recording everything. Are you recording me now? Can you please erase that?

“Lordy, I hope there are tapes.”


10 thoughts on “How Many Times Must TSA Be Spanked for Illegally Prohibiting Filming?

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    1. I don’t think they can myself. It seems that once a person gets a badge, and even some who don’t get one, think they are above the law. People who have badges need to understand that once they violate the law, they themselves are criminal. The badge may give some abilities not given to anyone else, such as the ability to do a traffic stop or arrest someone, but it doesn’t give them a license to do as they please.

      I would say that maybe some need to get fired but thing is, most likely the higher ups are training them to do this and think they are in the right when they are not. I wonder if some higher up people need to be fired? Of course, that is not likely to ever happen.

      I think the best option, get rid of the TSA. That solves the problem for good. It may cause others but it certainly solves that one.

      1. Agreed I feel it is a power trip and the upper management continue to endorse the behaviour. It’s funny though, the higher level management above the TSMs generally are very recptive to fixing problems.

        1. I think a lot of what the Federal Govt does is a power grab. TSA is just one good example of it. I remember when they had a person testify about the TSA several years ago and it was said that the TSA has stopped zero terrorist events. Not one. We all know about the shoe bomber, underwear bomber and no telling how many others that got through. Heck, Jon has proven that the TSA isn’t even remotely good at its job. There are others as well.

          The only point of TSA, stomp on a few more rights of as many as possible claiming it is for security, while not actually providing it. What’s that old saying. Those who give up liberty for safety deserve neither. I’d feel much safer with a armed pilot who is one heck of a shooter myself. Special ammo for planes maybe but deadly just the same. Let’s not forget the plane that crashed in the field. The passengers knew it meant death for them but also wanted to save others if they could. They did. Who knows how many lives were saved that day too.

  1. How Many Times Must TSA Be Spanked for Illegally Prohibiting Filming? Simple – until there are consequences. Preferably at the personal level. As long as nothing happens to the who abuse their power they have no reason to stop.

  2. The man at the end ofnthe video needs to be tried and prosecuted for conspiracy against rights under threat of bodily harm, his waiving of his antenna and tone indicate he was willing to use violence to coerce compliance with an unlawful order. People need to have a separate camera and separate phone so they can dial 911 when TSA starts making threats.

  3. There was no spanking, just a reminder of the rules. There must be quick and firm punishment of federal employees when they violate out civil rights.

    Those TSA bages have no more meaning than a plastic play cop badge bought at Toys R Us. TSA screeners have absolutely ZERO law enforcement authority.

  4. There is a new order where if you opt out, and they swab your hands, clothes, and belongings, and they get a beep indicating a positive for explosives, they then have a stage 2. Stage 2 means you go for a round 2 of pat downs, except instead of using back of hand, they use front of hand and require you to go into a “private room” (closet). I don’t see how that makes any sense. What I do know is that NOBODY trusts these lowlifes and all know better than to enter a private closet where it’s their word against yours.

    In essence this new rule has zero correlation with increased accuracy and 100% correlated with making opting out so hellaciously uncomfortable that everyone agree to the naked body scanner. What further amazes me is that there is zero public outcry that this is unconstitutional and terrorizing boring citizens leading Nirmal boring lives, just trying to get to their destination.

    1. Hi Tadah, I’m not sure this is new… it’s just new to you because you’ve never tested positive for explosives before! You’re not alone — those explosives testing machines have never actually found a bomb — 100% of the times they’ve alarmed, it’s been on innocent passengers.

      I highly recommend to everyone to refuse “the back room.” Miss your flight if you must — it’s simply not worth it.

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