If you’ve flown in the last 10 years, you’ve dealt with the Transportation Security Administration (TSA). They’re the government agency that was established after 9/11 to take over security screening at airports, which used to be handled by airlines (though it was regulated by the government).
Over the last 10 years, their security procedures have become increasingly invasive of passengers’ privacy. In the latest controversy, major airports have installed machines that can see under a person’s clothes, revealing every object they have on their person, including non-metallic objects that metal detectors miss.
Because of privacy and health concerns (some people are worried about the radiation exposure, though, from what I understand, it’s minimal), the TSA has allowed passengers to opt out of going through these machines. However, those who opt out are subject to physical searches by TSA agents.
A lot of people, however, have begun to speak out against perceived overreach by security officials. As a warning to the prudish, this post necessarily makes several mentions of, shall I say, lady bits. I’m not sure if this really requires a warning. But in case it does, consider yourself warned.
So, the story goes like this: a female blogger opted out of the x-ray machine, and was taken aside for a physical search. During this time, she repeatedly, and loudly, voiced her displeasure at having to go through this humiliating ordeal, simply for the privilege of flying. As the search continued, the TSA officer put her hands down the passenger’s pants, and inserted her finger into the passenger’s vagina.
Understandably, the passenger was shocked, horrified, and humiliated. She claimed, again, quite loudly, that the TSA agent had just raped her. Honestly, I don’t consider that to be an unreasonable characterization of what was done to her. She then wrote about the story on her blog. She alleged that the agent’s actions served no purpose other than humiliation and punishment, to show the world what happens when you speak out against the TSA’s actions.
This is where it gets interesting (as if it weren’t already). The TSA agent heard about the blog post, and is now suing the blogger for defamation and intentional infliction of emotional distress (IIED).
The blogger’s lawyer wrote a response which is very colorful, and definitely worth a read.
There are people out there who claim that TSA employees are no better than Nazi soldiers, and that they should know that what they’re doing is wrong, and therefore should, if necessary, bear the full brunt of the punishment for the perceived transgressions committed by the system of which they are a tiny part.
There are others who claim that they’re just working people trying to make a living. They probably don’t like their jobs, or agree with all of the policies they’re required to implement, but with the job market the way it is, what are they supposed to do?
I fall somewhere in between. I think that many of the actions engaged in by the TSA are completely worthless in terms of keeping us safe. And, on top of that, they are gross violations of privacy, bodily autonomy, and basic human dignity. And I recognize that anyone who would willingly participate in this system is, to some degree, complicit.
But, I also believe in keeping things in perspective. While many of the TSA’s actions are unnecessary and inexcusable, there is something to be said about the rationale that the ground-level employees are just doing their jobs. And it’s also important to keep things in perspective. We’re not talking about genocide or war crimes, after all.
On the other hand, the participation of these low-level employees is necessary for the improper actions of the TSA to continue. And what was done to the defendant in this case is absolutely unacceptable and inexcusable. I’m not going to mince words here: she was not being overly dramatic when she claimed that the TSA agent sexually assaulted her. If what she says is true, the agent’s actions absolutely constitute sexual assault. And while this is highly unlikely to actually happen, I believe that a criminal prosecution of the TSA agent involved would be completely warranted.
As to the merits of the defamation suit, I can say pretty confidently that it has none, especially if the defendant’s statements are true.
And even if they’re not completely true (for example, a court, for whatever reason, determines that the conduct of the plaintiff does not meet the legal standard for being considered sexual assault), colorful hyperbole, even if it’s not 100% true, does not rise to the level of defamation.
And the claim for emotional distress is just as perplexing. In order to succeed in a claim for Intentional Infliction of Emotional Distress, the plaintiff has to show, among other things, that the defendant engaged in outrageous conduct. All the defendant did was relay an account of what a public employee did to her. If that’s “outrageous,” then the whole First Amendment is an outrage. Good luck finding a court that will take that stance.
To the TSA agent involved in this case: if the defendant’s conduct made you uncomfortable, remember that you’re a public employee. People expect you to be held accountable for your actions. At the very least, the public (rightfully) expects to be informed about what’s being done in their name. If that upsets you, perhaps you’re in the wrong line of work.
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