Can the TSA Make You Hide ‘Offensive Symbols’ When Going Through a Checkpoint?

The TSA wouldn’t allow a purse with a designs of guns on the side to be publicly viewable as a personal item when clearing the checkpoint at the Columbus, Ohio airport.

..TSA said it would “offend their travelers.” They made her put it in her carry on.

..She stood in the security line, but when she placed her purse on the conveyor belt, they stopped her.

…“We are just going to ask you to keep your purse in your bag where it cannot be seen by other travelers. I know these are not ACTUAL guns, but they may offend some of the other people traveling.”

I am not a lawyer let alone one specializing in free speech law. My initial impression, though, is that the Supreme Court’s Cohen v. California ruling would be clear on this point.

That’s the 1971 case where the Supreme Court overturned a disturbing the peace conviction for a man wearing a jacket that read “[F-] the draft.”

Relately, the 2011 case of Snyder vs. Phelps ruled 8-1 that ‘outrageous’ speech in a public forum on matters of public concern could not be subject to a tort of emotional distress.

It seems to me that offending travelers with items brought through a security checkpoint can’t possibly be grounds for official action. Whether the intent of the woman carrying the purse was actually meant to make a political point, I can certainly imagine carrying an identical handbag to make a point about security. Surely choice of accessory is expressive conduct.

I’d love to hear, though, from those whose knowledge of this area of law is greater than mine.

As they say, a few bad apples who in no way undermine the hard work that thousands of men and women at the TSA do to keep us safe, day in and day out.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. I agree with you that the government shouldn’t be banning things at TSA checkpoints that are offensive. If they had told her she couldn’t bring the bag because it had metallic replica guns, and they don’t allow those on planes, I’d have no problem with that. It seems odd though that they would allow it but tell her to put it in her bag. They should just be assessing allowed v. non allowed items.

    The airline, on the other hand, can tell people not to bring or display dumb or offensive things on their planes and refuse to allow them on board if they are wearing an offensive shirt that says “I hate women and Chinese people” or something.

  2. I won’t opine as to the legality of such regulation of speech.

    But I fail to understand how the TSA deemed itself, in the first instance, the arbiter of offensiveness rather than the body which ensures physical security of aircraft. If such speech can be regulated at all, I opine that ordinary airport police authorities should have exclusive jurisdiction.

    At bottom, when did this become their job? and do some of them have more time on their hands than they need to perform their core mission?

  3. “We’re gonna ask you” is free speech too. The TSA or anybody else can ASK anyone anything. If she had continued to sport the bag in defiance of their polite request, my guess is that the gate agent or another airline employee would have denied boarding because, guess what, that gun stuff does offend a decent percentage of people who work on airplanes not to mention those of us who have actually been shot at. There’s a time and place for political protest or for trivializing other peoples’ traumas. A metal tube flying through air with dozens of other people ain’t it. That’s far worse than a Tshirt with the eff-word on it, and airlines tell people to turn it inside-out or go home all the time. More kids have been killed by guns than by the eff word…

  4. First, when we talk about offensive speech, the 1st amendment only allows for censorship of obscenity (porn), fighting words (i’m going to kill you), commercial speech (ads), and defamation. If we’re calling it speech, a gun embroidery doesn’t fall into any of those categories so it should not be censored by the government.
    BUT – you consent to the TSA’s rules when you buy a plane ticket, which many argue takes us out of the realm of oppressive government action. If you don’t like it, you have the option of not traveling by commercial airline. This is why TSA search protocols do not fall under the Fourth Amendment search and seizure rules.
    I’m guessing somewhere in the fine print when you buy a plane ticket there is a provision giving the TSA wide latitude to order you around, and you voluntarily entered into that contract so you’re stuck with the terms.

  5. So will TSA also ban what movies are shown on planes ? Lots of guns and nukes… so scary !! And what if the 3D technology comes on the planes!

  6. Lucy raises a good point about consent, though airline ticket contracts are problematic from a consideration standpoint. In other words, there are likely some rights that you couldn’t consent to via contract no matter what.

    Couple other points:
    1. I remember the court made a big about how the “F the draft” jacket was political speech. The Court will go way out of its way to protect political speech. Perhaps the hideous purse in question could be characterized as political speech, in terms of 2nd amendment rights, but I doubt it because the design is not political on its face like the F the Draft statement.
    2. This is pretty obvious, but the Court gives the government a ton of leeway post 9/11 when evaluating security v. civil liberties. While not totally analogous, the Court has acknowledged that freedoms are significantly limited at the border (including in airport customs areas) in US v. Montoya De Hernandez. Clearly not the same facts, but a reminder that a lot of our freedoms are depend on the circumstances surrounding the government action.

  7. Excellent point by peachfront, and it may be overstatement to say the TSA wouldn’t allow the purse. Officers might have just asked her to hide it and did her a favor so she didn’t get in trouble with the airline.

  8. Cohens involved political speech, while Phelps involved speech bearing on a matter of public concern. Where speech touches either First Amendment protection is at its strongest. Guns are clearly a matter of public concern, see Heller and McDonald. Thus, if the First Amendment has not been waived in this setting, this is likely a violation.

  9. TSA has a bunch of goofballs working for them, lets just say that they are “enforcement wannabees.” It’s as simple as that.

    I was on a recent flight out of DEN. As I was going through security checkpoint, I overheard a TSA agent speaking to another. The first TSA agent was telling him about another (a 3rd) TSA agent who “isn’t too sharp” (not his exact words but sums up what he was trying to convey). Then he went on to say (exact words) that this 3rd agent “is very susceptible to the JEDI mind trick – – THESE AREN’T THE BAGS YOU’RE LOOKING FOR….”

    I swear – HE WAS SERIOUS. It would be one thing if it was a joke but he was totally, 100% serious. And this was the supervisor. The JEDI mind trick……..Gimme a break.

  10. “you consent to the TSA’s rules when you buy a plane ticket”

    Really, we have to consent to whatever whim a TSA agent makes up on the spot to have the privilege to fly on an airplane? If an agent is allergic to peanuts, and you have a purse with pictures of peanuts on it, you have consented to have the agent require you to hide it in your carryon?

    Depictions of guns may offend people who work on planes, or who have been shot at? So then after 9-11 we can certainly say that any thing that reminds someone of Islam, or Saudi Arabia, or even words written in Arabic will be offensive to both crew and passengers?

    Che Guevara was a terrorist and mass murderer. A TSA agent, especially one of Cuban heritage, whose relatives may have been murdered by Che, who is offended by people wearing Che t-shirts, can then make them turn them inside out?

    No, when we buy a plane ticket we do not consent to being censored upon the whim of whatever TSA agent happens to be at the gate when we get there. We consent to be screened for safety reasons only.

  11. Official or unofficial who cares? If they feel it might offend then turn it face down, run it thru and move on. Trust me nobody cares, we just want to put on out shoes and belts and make sure out phone and laptop are not stolen.

    I was coming back from a very long work trip and one of my only clean tee shirts was black with big white block lettering that said “F**K what you heard act like you know” across the front. I also was wearing a zippered hoodie mostly covering the saying. I was instructed to remove the hoodie at the TSA checkpoint – but a moment later one of the TSA agents asked me to put my hoodie back on and zip it up – with a wink. He walked me thru the metal detector and let me get my stuff. Easy. No harm. I was not parading the shirt to offend anyone but they saw the potential and addressed it professionally.

  12. What an ugly purse!!!! TSA is a joke. You have to throw your $0.30 water bottle to go through security so you can pay $4.50 for the same water bottle after security. If they think the water in the bottle is a potential hazard for the safety of the people in the plane just ask the passenger carrying the bottle to take a sip. If he doesn’t then it may be something but otherwise give me a break!!!!

  13. life is too short to argue about stupid crap like the free speech implications of an ugly purse.

    My explicit goal when walking up to security is to make sure I’m manipulating the system in such a way as to make my security delay as short as possible. Anything else is a waste of time and emotional energy.

  14. I roll my eyes every time a travel blogger writes about TSA/airport security as though they are assaulting personal liberty. Save your rant for some other soapbox website.

    I read travel blogs to be current on what it takes to get through security as quickly as possible, to game the system if necessary, among other travel tips.

    If someone wants to put on civil disobedience or make a statement, it’s their right in this country. It’s also my right to call out NIMBY and watch the public nuisance get escorted so they can be righteous elsewhere.

  15. They only asked her to put the purse in her carry on. They didn’t confiscate anything, so I don’t see much harm done. She was allowed to take the purse out after passing security, so just get over it.

    I think the issue is more about people’s (especially Gary’s) dislike for the TSA. What if it was an FA that asked instead of a TSA employee? Would you still have published this post?

    Yes, US airport security is a pain in the… but this has very little to do with our rights of free speech. Flying commercial airplanes you accept to follow whatever arcane rules are imposed, or just drive or take boat instead. What if it was a purse with the word bomb on it? Or sex bomb? Would that still be protected as free speech. How about a buddhist swastika (freedom of religion?)

  16. Talk about insane. A picture of a couple of guns on a purse? And TSA claims people are offended? I’m staunchly anti-gun, but that’s about as innocuous as it gets. I’m more offended by the low intelligence incompetent buffoons who staff the security check points and make the asinine rules.

  17. @Lucy – The government generally cannot circumvent the First Amendment’s protections by requiring a person to abide by otherwise impermissible speech restrictions as a condition to obtain some benefit – e.g., boarding a commercial flight. “‘[T]he government may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech even if he has no entitlement to that benefit.’” United States v. American Library Assn., Inc., 539 U.S. 194, 210 (2003) (quoting Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 674 (1996).

  18. It’s not clear whether there would be a cause of action against the TSA (or DHS) in this case. The Court has been loath to extend Bivens claims to First Amendment challenges, especially where–as here–there is a pre-existing statutory/administrative framework within which one could bring a claim. Thus, the lady in question would have to file suit through TSA channels, where they’d decide the issue on narrower grounds, i.e., that she was incorrect and didn’t follow the rules (which undoubtedly don’t allow this sort of thing). That doesn’t mean there is no “technical” First Amendment violation, though.

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