Michael Williams, traveling through EWR airport in Newark, N.J. a few days ago, was surprised when TSA screeners gave him a hard time for photographing his own belongings, and then threatened to have him arrested when he recorded the TSA screeners and managers themselves:

The video starts with Mr. Williams explaining his situation to a blue-shirt screener, and then 2 supervisors in suits walk up to him, and decree the following:

Listen, I’m not here to argue with you. I’m telling you what we’re supposed to do. I’m the lead terminal manager, and no, you are not allowed to take pictures of my officers. [If] my officer feels uncomfortable with you taking pictures because you are interfering with the screening process, my officer is correct, and you are wrong. Ok? Clear?”

The threat of arrest comes off-camera after Mr. Williams starts walking away, but the damage to his constitutional rights has already been done even without that threat: Mr. Williams’ taping was protected both by TSA rules and the First Amendment.

Some areas of the law are gray areas. Others are perfectly clear. Whether photography is allowed at TSA checkpoints is one of those that is perfectly clear. From the TSA’s Web site:

“We don’t prohibit public, passengers or press from photographing, videotaping, or filming at screening locations. You can take pictures at our checkpoints as long as you’re not interfering with the screening process or slowing things down. We also ask that you do not film or take pictures of our monitors.”

I contacted the TSA for comment on Mr. Williams’ video, and it was also perfectly clear to TSA Press Secretary Lisa Farbstein:

Hi Jon. Your inquiry was forwarded to me for response. Indeed individuals are permitted to film the checkpoint and the TSA officers who are working. The individual who [Williams] encountered will be reminded of that fact. Thank you for bringing it to our attention.

Even if the TSA didn’t want to allow photography at its checkpoints, doing so is probably First Amendment-protected speech that they cannot ban anyway:

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” … The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles.

Glik v. Cunniffee, 655 F.3d 78 (1st Cir. 2011) (internal citations omitted). The U.S. Court of Appeals for the Third Circuit, which encompasses New Jersey, agreed earlier this year.

This kind of nonsense happens all the time, including to me. Incidents of people being denied the right to take pictures or video are fastidiously documented by Photography Is Not A Crime (PINAC), and their archive of TSA abuse in this realm is well-populated. It sounds like the TSA needs to be sued over this, and they should probably be careful considering that I’ll have my license to practice law before the statute of limitations for this matter will expire.

In the meantime, at the least we can get a laugh out of the end of the video. The supervisor who came to tell him he could not film apparently doesn’t realize the passenger is still recording until the end, leading to this gem when the passenger says he’s going to forward video to the “FSD” (Federal Security Director — basically a high-level regional TSA director):

I hope you’re recording everything. Are you recording me now? Can you please erase that?

“Lordy, I hope there are tapes.”