LOS ANGELES - A federal judge today sided with an air marshal concerned that overly restrictive policies may jeopardize the public's safety and curtail whistleblower rights.
U.S. District Judge Edward Rafeedie said in a brief decision Tuesday that a lawsuit filed by the ACLU of Southern California on behalf of Air Marshal Frank Terreri against the government should move forward toward a trial.
"The Federal Air Marshal policies have a chilling effect on whistleblowers' speech," said Peter Eliasberg, Manheim Family Attorney for First Amendment Rights at the ACLU of Southern California. "If air marshals fear participation in public discussion that could improve the safety of the airline industry the public is at risk. The original policy, and the new one, is unconstitutional and we are pleased the judge rejected the government's argument and will allow the case to go forward so we can demonstrate how these policies improperly chill speech that the public has a vital interest in hearing."
In the original lawsuit, filed in April 2005 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 government then changed its personnel policy in July, but, like the previous directive, it contains speech-restrictive provisions and is likely to continue to put the public's safety at risk. At the end of August, Terreri amended his lawsuit to also challenge the constitutionality of the new policy.
Terreri has 16 years of law enforcement experience with an unblemished record. For the past four years he has been a federal air marshal and is also a president of the air marshal division of a professional membership organization that represents more than 24,000 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.