NEW YORK - November 9 – In a court motion filed today, the American Civil Liberties Union of Southern California is seeking to block a new Department of Homeland Security policy that overly restricts the free speech rights of Federal Air Marshals. The ACLU charged that the policy will prevent whistleblowers from reporting mismanagement or wrongdoing and is likely to jeopardize public safety.
"The new policy does nothing to ease the chilling effect on whistleblowers' speech," said Peter Eliasberg, Manheim Family Attorney for First Amendment Rights at the ACLU of Southern California. "The policy is unconstitutional and leaves air marshals in the untenable position of not knowing whether they have First Amendment rights to participate in public discussion that could improve the safety of the airline industry."
The ACLU filed the motion as part of its ongoing defense of Air Marshal Frank Terreri, who was prohibited from speaking publicly about the Federal Air Marshal Service. The ACLU is asking the court to issue a temporary restraining order in advance of a House Judiciary Committee report on the mismanagement of the Federal Air Marshal Service by the current administrators. The current policy could prohibit Terreri from commenting on the report despite his prominent role as a president of the Federal Law Enforcement Officers Association and an informed critic of the Air Marshal Service.
The Federal Air Marshal Service director has personally initiated four investigations of Terreri - two after Terreri filed his lawsuit against Department of Homeland Security Secretary Michael Chertoff and other security officials in April. As a result, portions of the motion for a restraining order are being made under seal since the Department of Homeland Security warns employees that any release of information about an investigation may result in discipline or criminal action.
In the original lawsuit, dubbed Air Marshal X, Terreri challenged Federal Air Marshal Service rules that prohibited him from speaking publicly about his job or criticizing the Air Marshal Service. The ACLU called the policy a clear violation of Terreri’s First Amendment rights.
The Department of Justice agreed and said that the original rules were "unenforceable as written." In July, the Department of Homeland Security issued a new directive purporting to honor the free speech rights of Federal Air Marshal employees. At the end of August, Terreri amended his lawsuit to also challenge the constitutionality of the new policy.
"The new policy of the Department of Homeland Security simply repackages the original unconstitutional restrictions in different language," said Professor Allan Ides of Loyola Law School. "The biggest loser is the public, which is denied information on critical policy matters."
Last year Terreri, who has 12 years of law enforcement experience with an unblemished record, was taken off active flight duty and placed on administrative duty after he sent a private e-mail to another air marshal raising concerns about an air marshal profile in People magazine. He was returned to active flight duty the day after filing the lawsuit in April. He learned he was cleared of the first investigation and the charges were unfounded only after filing a Freedom of Information Act request.
The ACLU of Southern California, Professor Allan Ides of Loyola Law School and Paul Hoffman of Schonbrun, DeSimone, Seplow, Harris and Hoffman are representing Terreri.
For more information on the case, go to: www.aclu.org/NationalSecurity/NationalSecurity.cfm?ID=18087&c=24.