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Kansas City SEOAmy Alkon Blog Post About “TSA Rape.” Freedom of Speech?

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Amy Alkon Blog Post About “TSA Rape.” Freedom of Speech? Published on Thursday, September 8, 2011 by

Amy Alkon Blog Post About “TSA Rape.” Freedom of Speech?

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Amy Alkon
One woman had a particularly nasty experience during a TSA (Transportation Security Administration)  pat-down. According to columnist and blogger Amy Alkon, her experience with a particular TSA agent went way past uncomfortable.

In a blog post, Alkon details a March 31st incident where she accuses a TSA agent of “raping” her with her hand during a public pat-down in Los Angeles.

Alkon writes about her disapproval of the whole procedure in general, saying that the pat-downs are both a physical violation as well as a constitutional one. On that day, she admits that she decided to make a scene on purpose, to bring attention to what she thinks is an unfair act, “to make it uncomfortable for them to violate us and our rights,” she said. So she began sobbing, loudly. According to Alkon, this was what happened next –

Nearing the end of this violation, I sobbed even louder as the woman, FOUR TIMES, stuck the side of her gloved hand INTO my vagina, through my pants. Between my labia. She really got up there. Four times. Back right and left, and front right and left. In my vagina. Between my labia. I was shocked — utterly unprepared for how she got the side of her hand up there. It was government-sanctioned sexual assault.

Upon leaving, still sobbing, I yelled to the woman, “YOU RAPED ME.” And I took her name to see if I could file sexual assault charges on my return. This woman, and all of those who support this system deserve no less than this sort of unpleasant experience, and from all of us.

Apparently, the lawsuit idea fell through as her lawyer told her she had an unwinnable case.

But now, the TSA agent in question is threatening to sue Alkon for her blog post, claiming defamation. Thedala Magee has asked for $500,000 as well as the removal of the blog post.

It doesn’t look like Alkon is going to comply with that request, as she writes today on her blog –

Magee is looking for me to pay her $500K, apologize to her, and take down my blog item about her — because I had the nerve to exercise my First Amendment rights and complain after she jammed her hand sideways into my vagina four times. (Unfortunately for Ms. Magee, I’ve always made a pretty crappy victim.)

She has also gained the services of a First Amendment lawyer named Marc Randazza who is working the case pro bono.

The letter that Magee sent Alkon requesting the monetary damages and the retraction of the “rape” allegations says that the “outbursts in public and writings on the internet” have subjected Magee to “hatred, contempt, and ridicule” and caused her “severe emotional distress, fear, and problems doing her duty.”

Alkon’s lawyer Randazza sent a letter back, saying –

Your client aggressively pushed her fingers into my client’s vulva. I am certain that she did not expect to find a bomb there. She did this to humiliate my client, to punish her for exercising her rights, and to send a message to others who might do the same. It was absolutely a sexual assault, perpetrated in order to exercise power over the victim. We agree with Ms. Alkon’s characterization of this crime as “rape,” and so would any reasonable juror.

Furthermore, even if your client did not actually sexually assault my client, Ms. Alkon’s statements to and about Ms. Magee would still be protected by the First Amendment. The word “rape” itself has been the subject of defamation cases by far more sympathetic Plaintiffs than your client. In Gold v. Harrison, 962 P.2d 353 (Haw. 1998), cert denied, 526 U.S. 1018 (1999), the Hawai’i Supreme Court held that a defendant’s characterization of his neighbors’ seeking an easement in his backyard as “raping [the defendant]” was not defamatory. This speech was protected as rhetorical hyperbole. Of course, we need not seek out Hawai’i case law in order to debunk your unsupportable claims. Rhetorical hyperbole has a strong history of favorable treatment in defamation actions. See Greenbelt Cooperative Pub. Ass’n v. Bresler, 398 U.S. 6, 14 (1970). This doctrine acknowledges our First Amendment right to express ourselves, even when employing literary license. Accordingly, even if your client’s actions were not “rape,” Ms. Alkon had every right to characterize them as such.

No free woman should endure what your client did to Ms. Alkon. Fortunately, Ms. Alkon is capable of recognizing injustice, and for the good of us all, she had the courage to speak out on this matter of public concern of the highest order. After Magee’s assault on Ms. Alkon’s vagina and dignity, Ms. Alkon exercised her First Amendment right to recount this incident to others in person and through her blog. This was not only her right — it was her responsibility.

He then quotes precedent defending the use of the word “rape” as hyperbolic language. So even if Magee didn’t “rape” Alkon in some meaning of the word, he says that she has the right to characterize it as such.

Some responses from people around the web:

If a government employee can touch any part of your body, which would be considered illegal in most venues, then anyone can write, print and say anything thing they want. I don’t have to read it, i don’t have to like it, but i am not going to let a total stranger touch my privates.  I can’t believe the people who fly put up with this.

The attorney may have felt it was a frivolous suit to begin with. Her actions in attempting to file a criminal complaint for sexual assault negate her argument that she is entitled to characterize her experience as ‘rape’ simply as a matter of hyperbole. Her experience with the TSA officer doesn’t fit the classic legal definition of ‘rape’ in California (or anywhere else, for that matter). In order to prove ‘sexual assault’ she would have to prove the TSA agent’s actions were motivated in pursuit of sexual gratification. He job description and the TSA policy and procedures guidelines as well as their training curriculum will very probably bury any ‘sexual gratification’ assertion or argument. I think the TSA agent has a pretty strong case.

If the TSA agent probed the woman through the pants penetrating her in the manner described, she should both be able to press charges, as well as civil suit, and by all means write anything she wants to. The Agent violated her rights, and should be held accountable for it.

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. Benjamin Franklin

So what do you think?  Does she have a right to freedom of speech when it comes to telling her story about something that has not been proven in a court of law? 

SA pat-downs have remained a hot button issue for years. Recently, the Texas legislature was forced to pull their “Groping Bill” when the U.S. Attorney for Texas warned that the passing of said bill would most definitely result in flight shutdowns. The “Groping Bill” would have made any TSA pat-down that involved the anus, buttocks or sexual organs a crime.If everything actually happened as Alkon reports, then you have to agree that this TSA agent’s actions crossed the line – no matter where you stand on the larger issue. Still, some would argue that penalizing the agent for enforcing policies under the instruction of the federal government is the wrong approach. Although it’s highly unlikely that a superior has ever told an agent to go as far as Magee allegedly went.

At this point, it seems to be a case of one person’s word against another person’s word. Should Alkon have the right to make these statements about her experience on her blog? Does a blog post like that fall into the realm of defamation of character?

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