TSA agent files defamation suit against blogger who claimed her pat-down was ‘rape’
posted at 12:15 pm on September 7, 2011 by Howard Portnoy
The Transportation and Security Administration has demonstrated repeatedly that it has no great love for the Fourth Amendment. Apparently one of its agents isn’t particularly wild about the First Amendment either.
The agent, Thedala Magee, has threatened a defamation lawsuit against Advice Goddess blogger Amy Alkon, who posted a rather frank account of her pat-down by Magee in March at Los Angeles International Airport. Magee is also seeking $500,000 in damages.
In the post, which identifies Magee by name, Alkon writes that after she “was made to ‘assume the position’ on a rubber mat like a common criminal”:
I decided that these TSA lackeys who serve the government in violating our rights just don’t deserve my quiet compliance. And no, I won’t go through the scanner (do you trust the government that they’re safe?) and allow a government employee to see me naked in the course of normal and totally ordinary business travel…
Basically, I felt it important to make a spectacle of what they are doing to us, to make it uncomfortable for them to violate us and our rights, so I let the tears come. In fact, I sobbed my guts out. Loudly. Very loudly. The entire time the woman was searching me.
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. [Emphases in the original]
Granted, the prose style is a little too True Confessions-y for my taste, but I will defend to the death Alkon’s right to publish her experience. First Amendment rights attorney Marc Randazza shares that view. Tech Dirt obtained a copy of a letter he sent to Magee’s attorney, in which he argued:
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 Hawaii 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.
Tech Dirt’s reaction is on the money: “I honestly don’t know if this reaches the ‘technical’ definition of rape, but I am massively troubled, if not horrified, by the idea that a woman who feels sexually assaulted based on what happened above ends up being threatened for saying she felt violated. Talk about adding insult to injury.”
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