3 ms·

If it's a question of balancing harms, then even the risk that open discourse, even the "icky" kind, might be imperiled is the greater harm, full stop.

• anigbrowl 13y ago
  What about the equally important freedom of assembly and travel, which is also constitutionally protected? You still seem hung up on the content of the speech, whereas the issue is that speech being made under color of the person's status as a TSA official. There's no barrier to some person expressing odious views without the additional context of being a government employee.
  • rosser 13y ago
    Travel, itself, isn't constitutionally protected, except insofar as it may be necessary for assembly; even then, it's the right of assembly that's protected. The government's position, one with which I'm somewhat sympathetic, is that the means of travel isn't protected. You can still take a bus or a train, drive yourself, or even hitchhike, if you're barred from flying. To say otherwise is tantamount to the claim that, as a citizen, you have a right to a driver's license. You don't. All that aside, you seem equally hung up on whether someone is acting in some capacity as a TSA official or not. I maintain that unless someone specifically and explicitly claims they're speaking in that capacity, we should assume they're speaking as a private party. I don't think it's the least bit ambiguous whether Mr. Harrington's blog posts — written while he was in the TSA's employ — nor this article, written after, are an official TSA position. Nor is it ambiguous whether your hypothetical anti-Muslim editorial, even were it penned by an active TSA employee — or, for that matter, officer or executive — is or isn't TSA policy. The legal system's notional "reasonable person" would be able to distinguish private speech from government policy in both cases, mooting your argument.
    • einhverfr 13y ago
      Well, it is complicated. There is a recognized right to travel as implicit, not in the Bill of Rights, but in the structure of the Constitution. The idea is that we are all citizens of the United States and we have a right to travel about the United States. See Crandall v. Nevada. That poses some very interesting questions. If there is no right to a specific mode of travel, but some places can only be reached effectively by plane (say Hawaii) then does placing an American on a no-fly list impact that right to go to Hawaii? Does it matter if that individual is a resident of Hawaii and is thus effectively barred from interstate travel by this? Internationally things get more complicated. I am not aware of any cases which hold squarely a right for Americans to travel about the world as they please. Certainly bans on spending money travelling to Cuba have been upheld. However what the government clearly cannot do is to take a protected criteria like speech, religion, or political viewpoint and use that as a basis for travel. If an individual were to say that policy was to dissuade Muslims from travelling, the harm would be that Muslims would get together and sue the government in order to determine the scope of this misbehavior and put a stop to it. There really isn't that much harm when compared to the likely other uses of such a power (silencing discussions, for example, of what Islam means for politics in the US). On the whole disadvantaged groups are protected by bans on hate speech, given what the government has done in the past.