Interstate Travel: Constitutional Challenges to the Identification Requirement and Other Transportation Security Regulations
CRS Report for Congress
Interstate Travel: Constitutional Challenges
to the Identification Requirement and Other
Transportation Security Regulations
Updated December 21, 2004
Todd B. Tatelman
American Law Division
Congressional Research Service ˜ The Library of Congress
Interstate Travel: Constitutional Challenges to the
Identification Requirement and Other Transportation
Since the terrorist attacks of September 11, 2001, security measures in and
around our nation’s transportation facilities have dramatically increased. Nowhere
has the increase been more noticeable than with respect to air transportation. New
federal statutes and agency regulations have been implemented, each with the
purpose of ensuring the safety and security of passengers, facilities, and workers of
our national transportation systems. Not all of these security measures, however,
have been publically disclosed. In fact, pursuant to its statutory authority, the
Transportation Security Agency (TSA) has issued a series of regulations relating to
transportation security in which a majority of the information, including rules, orders,
and directives has been classified as “sensitive security information” (SSI), and thus,
withheld from public scrutiny. For example, the regulation requiring that all
passengers produce photo identification before being allowed to enter the airport gate
area or board an aircraft, bus, or train has been classified as SSI, and consequently,
cannot be disclosed to the general public. In addition, the standards utilized for
creating, maintaining and requiring airlines to screen passengers against government-
provided “watch lists” and “no-fly lists” do not appear to have been made publicly
Recently, news reports have noted that at least two members of Congress have
been delayed because of concerns relating to similar names appearing on such lists.
Moreover, a California resident has brought a suit against the government alleging
that the secret nature of these laws violates established rights under the Fifth
Amendment’s due process clause, as well as the constitutionally protected right to
travel and the First Amendment. In addition, there is pending federal litigation with
respect to the constitutionality of both the “watch” and “no-fly lists,” as well as
pending state litigation regarding the scope of TSA’s authority to seize evidence
obtained during a routine search of a passenger’s luggage. While it is unclear
precisely what the courts will decide, these lawsuits raise constitutional questions not
only about the scope of the federal government’s authority to prescribe regulations
that impact the ability of citizens to freely move within our country’s borders, but
also about the government’s ability to keep those regulations from public scrutiny.
This report examines the legal basis for the transportation security measures,
including the SSI regulations, and analyzes the constitutional provisions under which
these measures are currently being challenged. This report will be updated as events
Constitutional Challenges to TSA’s Transportation Security Regulations ..5
Fifth Amendment Due Process...............................5
Right to Travel............................................8
First Amendment Rights....................................9
Other Pending Litigation.......................................11
Interstate Travel: Constitutional Challenges
to the Identification Requirement and Other
Transportation Security Regulations
Since the early 1960s the federal government has made it unlawful to engage in
behavior that threatens or endangers transportation security and safety. Prior to
September 11, 2001, many of these restrictions focused primarily on aviation
security. For instance, Congress has criminalized the “seizing or exercising control1
of an aircraft ... by force, violence or threat of force or violence.” In addition, it has
long been unlawful to have a concealed weapon, loaded firearm, or any other
explosive device on ones person or in ones property while boarding or attempting to
board an aircraft.2 More recent security measures include protections for flight
attendants and crew from interference with their duties, physical assault, and
To prevent such incidents before they happen, Congress has authorized the
Under Secretary of Transportation for Security to screen both passengers and
property for the purpose of assuring a safe flight, and to permit air carriers to refuse
to transport any person or their property if an individual “does not consent to a search
or inspection of his person ... to determine whether he is unlawfully carrying a4
dangerous weapon, explosive or other destructive substance.” Currently, the
Transportation Security Agency (TSA) is charged with assessing “current and
potential threats to the domestic air transportation system,” and has the authority to
“decide on and carry out the most effective methods for continuous analysis and5
monitoring of security threats to that system.”
1 49 U.S.C. § 46502 (2004).
2 49 U.S.C. § 46505(b) (2004).
3 49 U.S.C. § 46318 (2004); see also 49 U.S.C. § 46504.
4 49 U.S.C. § 44901 (2004); see also 49 U.S.C. § 44902 (2004).
5 49 U.S.C. § 44904(a) (2004).
Pursuant to the Aviation and Transportation Security Act, airport operators are
required to “establish a security program ... adequate to ensure the safety of
passengers” and to submit the program to TSA for review.6 In addition, TSA is
required to ensure that federal agencies “share ... data on individuals identified ...
who may pose a risk to transportation or national security,” “notif[y] ... airport or
airline security officers of the identity of [such] individuals” and “establish policies
and procedures requiring air carriers [to] prevent the individual from boarding an
aircraft, or take other appropriate action with respect to that individual.”7 These
requirements have been implemented through a series of Security Directives which
are said to include a list of individuals who are either barred from boarding an aircraft
altogether (the “no-fly list”) or required to undergo additional screening prior to
boarding (the “selectee list”). It appears, however, that these directives have not been
disclosed to the public because, except under narrow circumstances, federal law
prohibits the disclosure of “sensitive security information”(SSI).
The law governing SSI dates back to the Air Transportation Security Act of
1974 (1974 Act),8 which delegated authority for transportation security to various
agencies within the Department of Transportation (DOT). The 1974 Act specifically
authorized the Federal Aviation Administration (FAA) to prescribe regulations to:
prohibit disclosure of any information obtained or developed in the conduct of
research and development activities ... if in the opinion of the Administrator the
disclosure of such information – (A) would constitute an unwarranted invasion
of personal privacy ...; (B) would reveal trade secrets or privileged or
confidential commercial or financial information obtained from any person; or9
(C) would be detrimental to the safety of persons traveling in air transportation.
The FAA implemented this authority by promulgating regulations, which, among
other things, established a category of information known as Sensitive Security
Information (SSI). In 1997, the DOT definition of SSI included “records and
information ... obtained or developed during security activities or research and10
development activities.” Encompassed within this definition had been airport and
air carrier security programs as well as specific details concerning aviation security
measures. Consistent with this grant of authority, the FAA limited the applicability
of the SSI regulation to airport operators, air carriers, and other air transportation
related entities and personnel.
6 Aviation and Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597 (2002)
(codified as amended at 49 U.S.C. § 44903(c)(1) (2004)). Pursuant to its regulations, TSA
can amend any security plan if the public interest requires, see 49 C.F.R. 1544.105, and can
also issue “Security Directives” when it is determined that “additional security measures are
necessary to respond to a threat assessment.” See id. at § 1544.305(a).
7 See 49 U.S.C. § 114(h)(1)-(3) (2004).
8 Air Transportation Security Act of 1974, Pub. L. No. 93-366 § 316, 88 Stat. 409 (1974).
10 14 C.F.R. § 191.1 (1997).
After the attacks of September 11, 2001, Congress enacted the Aviation and
Transportation Security Act (ATSA), which, in addition to creating new security
mandates, established the TSA within DOT, and transferred the responsibility for
aviation security to the Under Secretary of Transportation for Security.11 Among the
legal authorities transferred to the Under Secretary was the protection of certain
information vital to transportation security, or SSI. In addition to transferring SSI
authority to TSA, the ATSA expanded the SSI authority by eliminating the specific
reference to air transportation.12 This statutory change appears to permit TSA to
protect SSI with respect to virtually all forms of interstate travel including airplanes,
buses, trains, and boats.
TSA and its legal authority, however, did not remain within the DOT. The
Homeland Security Act of 2002, transferred TSA, along with its SSI classification
authority, to the newly created Department of Homeland Security (DHS).13 The
Homeland Security Act of 2002 provides TSA with the authority to:
prescribe regulations prohibiting the disclosure of information obtained or
developed in carrying out security under authority of the Aviation and
Transportation Security Act (Public Law 107-71) or under chapter 449 of this
title if the Under Secretary decides that disclosing the information would– (A)
be an unwarranted invasion of personal privacy; (B) reveal a trade secret or
privileged or confidential commercial or financial information; or (C) be14
detrimental to the security of transportation.
In addition, the Homeland Security Act of 2002 amended the existing DOT authority
with respect to SSI such that it would be almost identical to the TSA authority. The
only difference between the statutes is contained in subpart (C), which provides DOT
with authority to prohibit disclosure of information that would be “detrimental to
transportation safety.”15 By removing any reference to persons or passengers,
Congress has significantly broadened the scope of the SSI authority. As a result, it
appears that the authority to classify information as SSI now encompasses all
transportation related activities including air and maritime cargo, trucking and freight
transport, and pipelines.
Initially, DHS issued regulations that simply transferred the majority of the16
aviation security regulations, including SSI, from the FAA to TSA. On May 18,
11 The Under Secretary for Transportation Security is also known as the Administrator of
12 Aviation and Transportation Security Act, Pub. L. No. 107-71 §101(e)(3), 115 Stat. 597,
13 Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2312 (Nov. 25, 2002).
14 See id. at § 1601(b) (codified as amended at 49 U.S.C. § 114(s) (2004)).
16 See generally, 67 Fed. Reg. 8340 (Feb. 22, 2002).
response to their newly expanded statutory authority.17 These revised regulations
adopt the Homeland Security Act language as the definition of SSI. In addition, the
new regulations incorporate former SSI provisions, including the sixteen categories
of information and records that constitute SSI. Included among these categories are:
security programs and contingency plans;18 security directives;19 security measures;20
security screening information21 and; a general category consisting of “other
Since 2001, the implementation and use of the SSI regulations by TSA has
created a number of controversies. These included the withdrawal of two federal
criminal prosecutions involving TSA baggage screeners for fear that proceeding
17 See 69 Fed. Reg. 28066, 28069 (May 18, 2004).
18 This section includes
any security program or security contingency plan issued, established, required,
received, or approved by DOT or DHS, including:– (i) Any aircraft operator or
airport operator security program or security contingency plan under this chapter;
... (iii) Any national or area security plan prepared under 46 U.S.C. 70103;....
See 49 CFR § 1520.5(b)(1) (2004).
19 Defined as “any Security Directive or order: (i) Issued by TSA under 49 CFR 1542.303,
1544.305, or other authority; (ii) Issued by the Coast Guard under the Maritime
Transportation Security Act, 33 CFR part 6, or 33 U.S.C. 1221 et seq. related to maritime
security; or (iii) Any comments, instructions, and implementing guidance pertaining thereto.
See 49 CFR § 1520.5(b)(2) (2004).
20 Defined as including
specific details of aviation or maritime transportation security measures, both
operational and technical, whether applied directly by the Federal government
or another person, including– (i) Security measures or protocols recommended
by the Federal government; (ii) Information concerning the deployments,
numbers, and operations of ... Federal Air Marshals, to the extent it is not
classified national security information;....
See 49 CFR § 1520.5(b)(8) (2004).
information regarding security screening under aviation or maritime
transportation security requirements of Federal law: (i) Any procedures,
including selection criteria and any comments, instructions, and implementing
guidance pertaining thereto, for screening of persons, accessible property,
checked baggage, U.S. mail, stores, and cargo, that is conducted by the Federal
government or any other authorized person; (ii) Information and sources of
information used by a passenger or property screening program or system,
including an automated screening system; (iii) Detailed information about the
locations at which particular screening methods or equipment are used, only if
determined by TSA to be SSI; ....
See 49 CFR § 1520.5(b)(9) (2004).
22 The “other information” category includes “[a]ny information not otherwise described in
this section that TSA determines is SSI under 49 U.S.C. 114(s) or that the Secretary of DOT
determines is SSI under 49 U.S.C. 40119. Upon the request of another Federal agency, TSA
or the Secretary of DOT may designate as SSI information not otherwise described in this
section.” See 49 CFR § 1520.5(b)(16) (2004).
would require the public disclosure of SSI.23 In addition, there has been a continuing
controversy with respect to the proposed new version of the Computer Assisted Pre-
Screening System, or CAPPS II.24
Constitutional Challenges to TSA’s Transportation Security
Recently, a California resident filed suit against the United States challenging
TSA security procedures such as the requirement to show identification before
boarding an aircraft, the existence of government “watch lists” and “no-fly lists,” as
well as any implementation of a CAPPS II or similar passenger screening program.
The basis for the lawsuit is that the existence of these security measures and their
classification as SSI violate the Fifth Amendment’s due process clause, because they
are in effect “secret laws” that cannot be effectively litigated by citizens in the
courts.25 In addition, the suit alleges that the regulation requiring passengers to show
identification violates the constitutional right to interstate travel, and the First
Amendment’s clauses with respect to free association and petitioning of the
government. The case is currently pending before the United States Court of Appeals
for the Ninth Circuit.26
Fifth Amendment Due Process. In Gilmore, the plaintiff argues that
because TSA has classified its security regulations as SSI they have not been
published or made available to the general public in violation of the due process
clause of the Fifth Amendment.
The Fifth Amendment states, in relevant part, that “[n]o person shall be ...
deprived of life, liberty, or property, without due process of law....” With respect to
the government’s duty to make the law known by publication, the Supreme Court has
held that inherent within the notion of due process are certain requirements regarding
the notice and publication of the law.27 Even administrative agency regulations,
23 For a more detailed discussion of the controversies that have arisen as a result of SSI
implementation, see Mitchel A. Sollenberger, CRS Report RS21727 Sensitive Security
Infomation (SSI) and Transportation Security: Background and Controversies.
25 A search of the United States Code, Code of Federal Regulations, or Federal Register
yields no regulations, directives, or orders that require passengers to show identification
prior to entering the gate area of an airport or boarding an airplane, bus, or train. Similarly,
we were unable to locate any record of the federal government requiring that airlines check
passengers against a government maintained “watch list,” “no-fly list” or any other type of
record that may prevent an individual from traveling.
26 See Gilmore v. Ashcroft, 2004 WL 603530 (N.D. Cal. 2004). The allegations regarding
the Fifth Amendment due process clause were dismissed by the federal district court for lack
of jurisdiction. See id. at *3. The district court, however, did rule on the merits of both the
First Amendment and right to travel claims. The court rejected both claims with minimal
analysis and dismissed the entire case with prejudice. See id. at *7.
27 See e.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972); see also Lambert v. California, 355
directives, and orders are required to be published, and Congress has generally
provided for their publication by statute.28 As indicated above, however, with respect
to regulations and directives that contain SSI, Congress has provided an exception
to the general publication requirements.29
The phrase “due process of law” does not necessarily imply a proceeding in a
court or a plenary suit and trial by jury in every case where personal or property rights
are involved,30 therefore, it may be possible to argue that the government’s failure to
publish or otherwise make available specific requirements with respect to airline
security deprives citizens of the ability to effectively pursue enforcement of their
rights. There remains, however, a strong concern with respect to national security.
Divulging specific information related to either airport or airline security measures
may result in sensitive information being obtained and used to cause harm to
transportation facilities and passengers. To evaluate these respective concerns it has
been argued that federal courts employ a balancing test to determine what, if any,
process is due in this situation. In Matthews v. Eldridge,31 a case involving the
termination of social security disability benefits, the Supreme Court established the
following three part test for determining what procedures are constitutionally
necessary to satisfy due process:
first, the Court must consider the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government's interest,
including the function involved and the fiscal and administrative burdens that the32
additional or substitute procedural requirement would entail.
U.S. 225, 228 (1957); Joint Anti-Fascist Refugee Comm. v. McGarth, 341 U.S. 123, 171-72
(1951) (Frankfurter, J., concurring); Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 313 (1950).
28 See 5 U.S.C. § 552 (2004) (requiring agencies to publish rules, opinions, orders, records
and proceedings in the Federal Register); see also 44 U.S.C. § 1505 (2004) (requiring
publication of Executive orders, Presidential proclamations, and administrative rules in the
29 See 49 U.S.C. § 114(s) (2004).
30 See Ex parte Wall, 107 U.S. 265, 289 (1883) (stating that “[i]n all cases, that kind of
procedure is due process of law which is suitable and proper to the nature of the case, and
sanctioned by the established customs and usages of the courts.”); see also Joint Anti-
Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 163 (1951) (Frankfurter, J., concurring)
(stating that “[t]he precise nature of the interest that has been adversely affected, the manner
in which this was done, the reasons for doing it, the available alternatives to the procedure
that was followed, the protection implicit in the office of the functionary whose conduct is
challenged, the balance of hurt complained of and good accomplished--these are some of
the considerations that must enter into the judicial judgment.”).
31 Matthews v. Eldridge, 424 U.S. 319 (1976).
32 Id. at 335.
Applying the first factor to the unpublished security requirements, the private interest
affected by the government’s action appear to be a citizen’s right to legally challenge
and fully litigate the constitutionality of such requirements. The effective litigation
of constitutional rights often relies on access to information and other evidence used
by the government. By withholding publication, the government is arguably keeping
critical evidence private; and thus, is thwarting attempts to effectively challenge not
only the basis for the regulations, but also the procedures being used to implement
them. With respect to the second factor, it may be possible to argue that, in light of
recent errors regarding the “no-fly lists,” the possible risk of deprivation of personal
liberty is high, while the probable value of additional procedural safeguards, such as
public notice, opportunity to comment, publication of the process and compilation
methods used and the means to challenge inclusion would be great. Finally,
regarding the third factor, it appears possible to argue that while the government’s
interest in aviation security is certainly legitimate, it fails to rise to a substantial
enough level to prevent regulations, directives, and orders from being made a part of
the public record.
On the other hand, the government appears to be in a good position to argue that
a court should never reach a Matthews type balancing test. It may be possible to
argue that the due process clause has not been violated by keeping specific security
regulations, directives, and orders from the public. This argument rests on a
distinction between what the law itself requires, and what detection or law
enforcement techniques the government has chosen to use to enforce the
requirements of the law. In this case, the argument would appear to be that
passengers’ due process rights are limited to knowing what the law is, but do not
extend to knowing how the government may detect violations. At least two Circuit
Courts of Appeal have accepted that a distinction of this type exists, and have
prevented the disclosure of law enforcement techniques.33 By characterizing
requirements like the presentation of identification, passenger screening programs,
and the maintenance of “no-fly” and “watch” lists as techniques to enforce the
prohibitions against aircraft piracy and bringing weapons onto airplanes, the
government may be able to avoid a due process question altogether.
However, should the inquiry extend to a Matthews balancing test, the argument
would likely focus on the test’s third factor. One possible argument may be that in
a post-9/11 world the interest in maintaining effective control over the security of our
transportation facilities and passengers is of such substantial importance that it
outweighs any other procedural concerns. Another possible argument may be that
any additional procedural requirements would create such enormous administrative
burdens on the federal government that it would render any transportation security
efforts completely unworkable.
33 See Dirksen v. Dep’t of Health and Human Servs., 803 F.2d 1456, 1458 (9th Cir. 1986)
(citing Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653 (9th Cir.1980)
(emphasizing the distinction between law-enforcement materials, which involve
enforcement methods, and administrative materials, which define violations of the laws, and
noting that only the latter are likely to contain “secret laws” and should be disclosed if
requested)); see also Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544 (2d
Cir.1978) (holding that the FBI was not required to disclose information contained in their
“Raids and Searches” manual).
Right to Travel. The second basis offered by the plaintiff in Gilmore was that
TSA’s security regulations impose unreasonable burdens on common forms of
interstate travel. By requiring people to show identification and potentially
subjecting them to “watch lists” or “no-fly lists,” the government allegedly violates
a citizen’s constitutionally protected right to travel.
While not expressly defined in the text of the Constitution, the Supreme Court
has stated that the right to travel is a “privilege and immunity of national citizenship34
under the Constitution,” as well as a “part of the ‘liberty’ of which the citizens
cannot be deprived without due process of law.”35 The Court has declared that the
constitutional right to travel consists of three different components: first, it protects
the right of a citizen of one state to enter and to leave another state; second, it
protects the right to be treated as a welcome visitor rather than an unfriendly alien
when temporarily present in the second state; and third, for those travelers who elect
to become permanent residents, it protects the right to be treated like other citizens
of that state.36 In the context of transportation security, however, only the first prong
of the right to travel appears to be relevant.
Precedent regarding the right to travel, has developed along two primary strands.
The first addresses burdens imposed by state governments and involves the
Fourteenth Amendment, while the second strand involves federally-imposed burdens
on international travel and appears to involve the Fifth Amendment’s due process
clause. Under the Fourteenth Amendment cases, the right to travel from one state to
another has been considered a fundamental right under the Constitution.37 Consistent
with its status as a fundamental right is the requirement that the government’s action
satisfy the constitutional standard of review often referred to as strict scrutiny, or38
heightened scrutiny. Under strict scrutiny the government must provide a
compelling state interest for the burden and show that the means utilized are narrowly
tailored to the achievement of the goal or, phrased another way, the least restrictive
means available.39 In addition to the strict scrutiny cases, there have been cases
34 United States v. Guest, 383 U.S. 745, 764 (1966) (Harlan, J. concurring) (citing Corfield
v. Coryell, 4 Wash. C.C. 371 (1825)); see also U.S. CONST. Art. 4, § 2, cl. 1; U.S. CONST.
Amend. 14, § 1.
35 Kent v. Dulles, 357 U.S. 116, 125 (1958).
36 See Sanez v. Roe, 526 U.S. 489, 500-03 (1999).
37 United States v. Guest, 383 U.S. 745, 758 (1966) (stating that “[t]he constitutional right
to travel from one State to another, and necessarily to use the highways and other
instrumentalities of interstate commerce in doing so, occupies a position fundamental to the
concept of our Federal Union. It is a right that has been firmly established and repeatedly
38 Att’y General of New York v. Sato-Lopez, 476 U.S. 898, 906 (1986); see also Shapiro v.
Thompson, 394 U.S. 618 (1969).
39 Id. at 909-10. (stating that “‘if there are other, reasonable ways to achieve [a compelling
state purpose] with a lesser burden on constitutionally protected activity, a State may not
choose the way of greater interference. If it acts at all, it must choose ‘less drastic
means.’”(quoting Dunn v. Blumestien, 405 U.S. 330, 343 (1972); Shelton v. Tucker, 364
where the state has placed burdens on the act of travel itself. In these cases, the
justification level appears to be much lower.40 The Court has held that burdens on
travel are justifiable as long as they are uniformly applied and support the safety and
integrity of the travel facilities.41 Thus, for example, highway tolls and airport fees
have been upheld, but a general tax imposed on all individuals leaving a state may
impermissibly restrict travel.42
Conversely, in right to travel cases involving federally-imposed burdens on
interstate travel, which implicate the Fifth Amendment, courts appear to reject the
Fourteenth Amendment fundamental rights analysis and apply a less stringent
rational-basis test. The rational-basis test simply requires that laws be rationally
related to a legitimate government interest.43 Here again, the government appears not
to be required to show a compelling interest to justify a uniformly applied,
nondiscriminatory travel related restriction.44
Given that the airlines are seemingly authorized to refuse service to anyone who
fails to present proper identification, it appears that a strong argument can be made
that there is an additional burden imposed on citizens who wish to travel by airplane.
Thus, the inquiry should focus on the standard of review that should be applied. It
appears difficult to argue that passenger safety and transportation facility security are
something other than compelling governmental interests. Thus, it seems that,
regardless of which standard of review is applied, the government may be in a strong
position to argue that not only are the current security restrictions justifiable, but also
that their burden on the right to travel is minimal and given the present conditions
First Amendment Rights. Finally, the plaintiff in Gilmore contended that
enacting security measures that arguably foreclose the ability to travel interstate by
U.S. 479, 488 (1960)) (citing Memorial Hospital v. Maricopa Hospital, 415 U.S. 250, 263
40 See United States v. Davis, 482 F.2d 893, 912-13 (9th Cir. 1973) (upholding the pre-
boarding screening of passengers and carry-on articles by stating that the “screening of
passengers and of the articles that will be accessible to them in flight does not exceed
constitutional limitations provided that the screening process is no more extensive nor
intensive than necessary, ... to detect the presence of weapons or explosives, that it is
confined in good faith to that purpose, and that potential passengers may avoid the search
by electing not to fly.”).
41 See Evansville-Wanderburgh Airport Auth. Dist. v. Delta Airlines, 405 U.S. 707, 711-715
42 Id. at 714-16
43 See City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440 (1985); see
also Schweiker v. Wilson, 450 U.S. 221, 230 (1981); United States Railroad Retirement
Board v. Fritz, 449 U.S. 166, 174-175 (1980); Vance v. Bradley, 440 U.S. 93 (1979); New
Orleans v. Dukes, 427 U.S. 297, 303 (1976).
44 See e.g., Regan v. Wald, 468 U.S. 222 (1983); see also Zemel v. Rusk, 381 U.S. 1 (1965);
Aptheker v. Secretary of State, 378 U.S. 500, 514 (1964).
plane, train, or bus, is a violation of the First Amendment, because the measures
infringe on a citizen’s right to freely assemble, associate, and petition the
The First Amendment states that “Congress shall make no law ... abridging the
... right of the people peaceably to assemble, and to petition the government for a
redress of grievances.”45 The argument that the identification requirements and other
transportation security regulations violate these rights is hinged on the concept that
full exercise of liberties, such as those provided by the First Amendment, depends
on citizens being able to freely move throughout the country.46 By imposing
burdensome requirements on interstate travel the government has arguably prevented
persons who wish to refrain from identifying themselves and/or submitting to
enhanced security screening from exercising their constitutional rights.
While it appears that neither the Supreme Court nor any lower federal court has
been presented with an analogous situation, the Court has indicated that anonymity
is a concept protected by the First Amendment. For example, in Thomas v. Collins,
Sheriff, the Court invalidated a Texas statute requiring labor organizers to register
and obtain an organizer’s card before making speeches to assembled workers as
incompatible with the guarantees of the First Amendment.47 As recently as last term
the Court has upheld the general notion that citizens have a right to anonymity
especially in situations where a citizen is not suspected of a crime.48 In light of these
precedents, it may be possible to challenge the identification requirement on the
grounds that it violates the First Amendment’s rights of citizens to be anonymous;
however, claims made regarding the rights of association and petition of the
government do not appear to have received the same support.
Although it may be argued that a general right of anonymity exists, it is difficult
to connect the implication of this right to the purpose of the airline safety and security
regulations as a strong argument exists that the regulations are in no way intended
to impact a person’s First Amendment rights. Rather, the regulations at issue are
aimed at preventing and deterring security threats to transportation facilities and
passengers. Thus, these regulations can be said to have arguably, at most, an
incidental or indirect effect on rights protected by the First Amendment. In cases
where the regulation at issue was not specifically directed at First Amendment rights,
the Court has held such regulations subject to First Amendment scrutiny only when
“it was conduct with a significant expressive element that drew the legal remedy in
the first place, ... or where a statute based on a non-expressive activity has the
45 U.S. CONST. Amend. I.
46 Aptheker v. Sec. of State, 378 U.S. 500, 520 (1964) (stating that “[f]reedom of movement
is akin to the right of assembly and to the right of association”).
47 Thomas v. Collins, Sheriff, 323 U.S. 516, 539 (1944) (stating that “[l]awful public
assemblies, involving no element of grave and immediate danger ... are not instruments of
harm which require previous identification of speakers.”).
48 See Hiibel v. Sixth Judicial Dist. Court, 124 S.Ct. 2451 (2004).
inevitable effect of signaling out those engaged in expressive activity.”49 Given the
indirect effect that these regulations may have on First Amendment rights, it would
appear unlikely that challengers could establish the significant or substantial impact
on their right to associate or petition the government that would be required to trigger
First Amendment scrutiny.
Other Pending Litigation
In addition to the lawsuit brought by Mr. Gilmore, there is pending federal
litigation regarding the TSA “watch” and “no-fly” lists. The case was filed as a class
action lawsuit on April 6, 2004, by a group of individuals who were detained or
delayed as a result of mistakenly being included on these lists.50 On November 4,
2004, the district court heard oral arguments relating to the Department of Justice’s
motion to dismiss for lack of jurisdiction, however, no decision has been reached,
and it remains unclear exactly how the case will precede once the judge rules on the
procedural issue. Furthermore, there is pending state litigation involving John Perry
Barlow, co-founder of the Electronic Frontier Foundation and former Grateful Dead
songwriter, who has filed a motion for disclosure of TSA security directives as they
relate to criminal charges brought against him when contraband was discovered
during a routine search of his luggage while he was boarding a flight at San Francisco
International Airport.51 Mr. Barlow argued that the TSA violated his Fourth
Amendment right to be free from unreasonable searches and seizures, however, his
motion was denied by a California Superior Court Judge and Mr. Barlow must now
decide whether to appeal.52
While privacy groups and other opponents of transportation security regulations
regarding identification and the existence of “watch” or “no-fly lists” continue to
develop and press constitutional arguments, it appears that the government is in a
position to make reasonable and supportable counter arguments that protect the
validity of the current regulations. Though it is still unclear precisely how the Ninth
Circuit or other courts will rule, it appears unlikely that they will be able to hold the
regulations unconstitutional as violations of either the First Amendment or the right
to travel. The Fifth Amendment due process clause arguments, however, appear to
have a greater chance of success. Nevertheless, even a favorable ruling on those
grounds would not result in substantive changes to the regulations, but only the
49 Arcara v. Cloud Books, 478 U.S. 697, 706-07 (1986); see also Fighting Finest Inc. v.
Bratton, 95 F.3d 224, 228 (2d Cir. 1996) (stating that “to be cognizable, the interference
with associational rights must be ‘direct and substantial’ or ‘significant’”).
50 See Pl.’s Complaint in Green v. TSA, available at http://www.aclu.org/Files/
51 See Sarah Kehaulani Goo, Grateful Dead Songwriter Contests TSA Search, Wash. Post,
Dec. 20, 2004, at A9.
52 Id. see also Mary Anne Ostrom, Grateful Dead's Former Lyricist Finds Tough Fight
Against Searches, Contra Costa Times, available at http://www.contracostatimes.com
minimal publication of what is absolutely necessary to satisfy any procedural
requirements established by a court.