Airport search decisions and selectees' speech

Volokh, Eugene VOLOKH at
Wed Apr 11 11:04:03 PDT 2007

	Well, given that we know even less about the RA's circumstances
-- on what grounds is he not allowed to fly? why is he allowed to fly
otherwise? what might he have done that might have led to his being put
on some watch list? -- than we do about Murphy's, it's hard for me to
opine on the RA's situation, or on how his situation bears on Murphy's.


> -----Original Message-----
> From: Lynne Henderson [mailto:hendersl at] 
> Sent: Wednesday, April 11, 2007 8:38 AM
> To: Volokh, Eugene; conlawprof at
> Subject: Re: Airport search decisions and selectees' speech
> This stil ldoesn't explain why  Patrick, my RA is all the 
> time pulled aside and sometimes not allowed to fly--so I give 
> Murphy more credit than many do.
> Lynne Henderson
> ----- Original Message -----
> From: "Volokh, Eugene" <VOLOKH at>
> To: <conlawprof at>
> Sent: Wednesday, April 11, 2007 8:16 AM
> Subject: Airport search decisions and selectees' speech
> Please correct me if I'm wrong, but the evidence of possible 
> political-speech-based decisionmaking in the Murphy case 
> consists of (1) the fact that Murphy was selected, on one leg 
> of the flight, for extra scrutiny coupled with the fact that 
> he had publicly criticized the Administration, and (2) the 
> statement by someone at the airport (I forget -- was it a TSA 
> agent or an airline clerk) that people routinely get put on 
> such selectee lists based on public criticism of the 
> Administration.  I take it that #1 isn't terribly persuasive 
> on its own, since it could easily be coincidence; I take it, 
> for instance, that many members of this list have criticized 
> the Administration, including in public contexts, and yet 
> they generally fly mostly unobstructed.  So it comes down to #2.
> And as to #2, what is list members' sense of the probability 
> of these three scenarios?
> (A)  The Administration has a policy of placing 
> Administration critics on some special select-occasionally 
> lists, and it *announces this policy to airport personnel*, 
> even though there's no reason that they need to know about it 
> (since the names are presumably added by a completely 
> different set of people in a different place observing 
> different things).
> (B)  The policy is kept secret, as likely unconstitutional 
> and potentially highly embarrassing policies (if they exist) 
> are likely to be kept secret.  But this particular airport 
> employee has still heard about it from a reliable source, and 
> is thus knowledgeable on the subject even though it's quite 
> far outside his job description.
> (C)  The airport employee was repeating a rumor he'd heard -- 
> a rumor that is no more accurate than any other rumor anyone 
> might start
> -- or toying with Prof. Murphy or making stuff up.
> Eugene
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