LOS ANGELES - The ACLU of Southern California is seeking to enjoin a new Department of Homeland Security policy relating to federal air marshals' free speech rights that, like the previous directive, overly restricts speech and is likely to continue 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 still 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 motion filed today seeks a temporary restraining order in advance of a House Committee on the Judiciary report pertaining to its investigation of the mismanagement of the Federal Air Marshal Service by the current administrators. The current rules could prohibit Air Marshal Frank 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 FAMS.
The director of FAMS has personally initiated four investigations of Terreri - two after the lawsuit was filed. 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, filed in April against Department of Homeland Security Secretary Michael Chertoff and other security officials, Air Marshal Frank Terreri challenged Federal Air Marshal Service rules that prohibited him from speaking publicly about his job or saying anything to do with the Air Marshal Service, a clear violation of his First Amendment rights.
The Office of Professional Responsibility concluded 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."
Terreri has 12 years of law enforcement experience with an unblemished record. For the past three years he has been a federal air marshal and is also a president of a professional membership organization that represents more than 23,000 federal agents, including 1,400 air marshals.
Last year Terreri 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.
