Last Saturday, Arijit Guha, a Ph.D. student at Arizona State University trying to fly back from Buffalo to Phoenix with his wife after a family funeral, was kept off a Delta Air Lines flight because … well, as usual in such cases, we don’t know exactly why.
You can read Arijit’s story in his own words here. At first, a Delta supervisor objected to the parody t-shirt (with a design by Cory Doctorow originally published on BoingBoing) that Arijit was wearing.
After Arijit changed his t-shirt (and after he was interrogated, searched, and subjected to racist and xenophobic comments by multiple TSA staff and local police), “the Delta supervisor informed us the pilot had decided, regardless of the outcome of the multiple TSA screenings and my willingness to change shirts, that due to the discomfort my shirt has caused, my wife and I would not be allowed to board the aircraft. Passengers on the plane supposedly felt uncomfortable with my very presence on the flight. And the Delta manager went out of his way to point out that he wholeheartedly agreed with the pilot’s decision.”
If you ever find yourself in a similar situation, what are your rights?
As long as you’ve paid for a ticket and complied with all valid rules in the airline’s published tariff, you have a right to travel. That’s what it means for an airline to be licensed as a “common carrier”.
Your right to travel is guaranteed by, in ascending order of precedence, Federal law, the First Amendment to the U.S. Constitution, and international human rights treaties:
- Federal law: “A citizen of the United States has a public right of transit through the navigable airspace” (49 USC 40103). Note that the FAA (and the TSA, as part of the transfer of responsibilities when the DHS and TSA were created) is required to take this right into consideration in issuing regulations, giving orders, or otherwise exercising its authority: “The Administrator of the Federal Aviation Administration shall consider the following matters:… (2) the public right of freedom of transit through the navigable airspace” (49 USC 40101).
- U.S. Constitution, Amendment 1: “Congress shall make no law … abridging … the right of the people peaceably to assemble.” Note that the right to assemble is not limited by the Constitution to assembly for any particular purpose. It includes the right to assemble with family, with friends, with strangers, or with anyone else, for any or no purpose.
- International Covenant on Civil and Political Rights, Article 12: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement.” Note that unlike the Federal law cited above, over which it takes precedence as a treaty ratified by the U.S., the human right to freedom of movement under the ICCPR is not limited to citizens.
Can an airline deny or interfere with these rights?
The simplistic answer is usually that a pilot and/or an airline has the “discretion” to deny boarding or even to kick you off the plane. Such action would be based, presumably, on 49 USC 44902(b): “Permissive Refusal. — Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety,” and perhaps also on 14 CFR 121.533(d): “Each pilot in command of an aircraft is, during flight time, in command of the aircraft and crew and is responsible for the safety of the passengers, crewmembers, cargo, and airplane.”
We can’t find any regulations implementing 49 USC 44902(b), and there is very little case law defining “inimical to safety” or considering whether an airline’s or pilot’s beliefs about safety must be objectively reasonable. And there is no evidence that the FAA or TSA has ever, in issuing any regulations, considered the right to travel. We’ve raised it in numerous TSA rulemakings, but it has always been ignored when comments were “considered” and final rules were issued.
Even if implementing regulations had been issued, the licensing and regulation of pilots as well as of airlines is governed by the requirement of 49 USC 40101 for consideration of “the public right of freedom of transit”. The FAA has no authority to license a pilot or airline to operate flights as a common carrier without respecting the right to travel by air. Any discretion of the airline is limited to those would-be passengers who the airline genuinely believes might be “inimical to safety.” Any discretion of the pilot is limited to matters genuinely related to “the safety of the passengers, crewmembers, cargo, and airplane.”
At a higher level, regulatory and legislative authority is subject to the Constitution and to treaties — including the ICCPR — made under the authority of the United States. (The U.N. Human Rights Committee’s General Comment No. 27 on Freedom of Movement under Article 12 of the ICCPR specifies the criteria for evaluating whether laws and regulations comply with this part of the treaty.)
To sum up, a pilot or airline would have the authority to deny transportation to a lawful resident holding a valid ticket if and only if:
- The pilot genuinely believes that refusal to transport this person is necessary for “safety”;
- The airline genuinely believes that the person is or might be “inimical to safety”;
- The refusal of transportation is authorized by valid regulations, in the promulgation of which “the public right of freedom of transit” was considered by the rulemaking authority (so far as we can tell, there are no such regulations);
- The refusal to transport does not violate anyone’s First Amendment right to assemble; and
- Neither the refusal to transport, the laws and regulations purporting to authorize it, nor the manner in which those laws and regulations are carried out violate Article 12 of the ICCPR.
In Arijit Guha’s case, the airline’s stated grounds for denial of transport — that his shirt discomfited other passengers — clearly fails to satisfy any of these tests. If other passengers don’t want to share the cabin with you or be exposed to what you might have printed on your clothes, they don’t have to travel by common carrier. And there doesn’t appear to have been anything even alleged against Arijit’s wife except her association with her husband, which on its face is a violation of her freedom of association.
But even if the pilot or other airline staff claim that you are being denied transportation on the basis of “security”, they need to have sufficient basis for that belief to satisfy all of the criteria above.