The government argues that the police were called and Tobey was arrested because he failed to follow the screeners’ instructions that he proceed through the Advanced Imaging Technology screening device. The device has been controversial because it creates explicit images of the human body that amounts to a technological strip search.
Tobey disputes charges that he failed to follow instructions. He says he was told not to move and that he did not move until a police officer handcuffed him and took him into custody.
“The question … is whether the [screeners] in fact radioed for assistance because of the message [Tobey] sought to convey,” Judge Hudson wrote, “as opposed to [Tobey’s] admittedly bizarre behavior or because of some other reasonable restriction on First Amendment activity in the security screening area.”
Although an airport may seem to be a public space for purposes of free speech, the courts have upheld reasonable restrictions on speech in airports.
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.