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TSA agent files defamation suit against blogger who claimed her pat-down was ‘rape’

posted at 12:15 pm on September 7, 2011 by

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, 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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Sounds to me like the TSA employee should be “searched” by every passenger she’s gone to work on.

ElectricPhase on September 7, 2011 at 12:41 PM

As to the TSA employee, I would be satisfied if she were fired.

But this has got to change. No one should be subjected to this. Have Americans figured it out yet? This is the price we pay for not profiling, and for thinking we can do a bit of fear-grinning abroad and the alpha primates will leave us alone.

The price is too high. Whatever it takes, this should never happen again to another woman trying to fly in America.

J.E. Dyer on September 7, 2011 at 1:30 PM

I deplore the general overuse of the word “rape”, which waters down the impact of the term.

However: Putting a gloved finger into someone’s private parts without their consent and against their expressed wishes? I think that qualifies.

Profile here, profile now!

Mary in LA on September 7, 2011 at 1:55 PM

I recently flew to my niece’s wedding in New Jersey. All I had with me was what I had in my pockets and the tote for my cameras (and a change of underwear in the tote). I edit Cars In Depth, a car culture site that features 3D photos and video. Since I have both still photo and video 3D camera rigs, I figured that I’d shoot the wedding in 3D, like I did at my nephew’s and son’s weddings.

Now I expected a little hassle from the TSA because of the trigger switch for my still cameras. It’s made of a small USB hub, a switch, and a battery pack taped to the bottom. Obviously homemade. I brought business cards from Cars In Depth and got to airports early.

Now going home, in addition to my camera gear, I also had something else I expected to get hassled for. It was a traditional Jewish wedding ceremony, ending with the groom breaking a glass by stomping on it. I have a tradition myself of recovering the napkin holding the glass shards, and saving it in case the couple wants it as a memento.

So a switch that looks like it could be a bomb and big sharp shards of broken glass. But did the TSA agents say anything about those items? No. Instead the young TSA guy grabbed, with glee, the sealed bottle of water I’d grabbed on my way out of my host’s home to wash down the chips in the hospitality bag my sister left me. I say with glee because that was his affect. I don’t fly frequently and hadn’t thought of the rule about liquids. The guy was happy to have found something and then casually tossed it into the trash, like he was trying a three pointer. No, “I’m sorry but this can’t be allowed in a secure area”.

So he was so excited about being able to exercise his authoritay, he completely missed the glass shard and possible bomb.

Amy Alkon is a nice lady with credibility. Not only should she defend herself against any lawsuit from her government employed rapist Thedala Magee, her lawyer should file a countersuit under anti-SLAPP statutes. This is clearly an attempt by a government employee to squelch criticism.

Also, someone should teach serial rapist Thedala Magee’s attorney, Vicki Roberts, an attorney who represents sex criminals, that almost every case where some attorney thought it was smart to threaten or sue a blogger has ended up with egg on the lawyers’ and clients’ faces. In the old days of publishing you tried to avoid a debate with publishers who bought ink by the train carload, but today the ink is free on the internet.

Before Ms. Roberts’ strategic and tactical error, the only people that knew about her client Thedala Magee being a rapist were her victims and the readers of Amy Alkon’s blog. Now that Roberts has threatened to sue and demanded half a million dollars, every time someone searches on Google for Thedala Magee, they will see words like “rapist” and “thug”. And when they search on Vicki Roberts Attorney, on Google’s first page they’ll see her described as a “bottom feeder”. Ms. Roberts doesn’t understand that when people post comments like “Attorney Vicki Roberts represents rapists and sex criminals” those comments end up in Google search results.

Ms. Roberts has done more to defame her client than Amy Alkon ever did.

rokemronnie on September 7, 2011 at 2:32 PM

Where is Jazz Shaw defending the TSA?

AnotherOpinion on September 7, 2011 at 3:08 PM

So he was so excited about being able to exercise his authoritay, he completely missed the glass shard and possible bomb.

They’re good at missing the second wave of “contraband.” In the story of the mentally challenged man whose plastic toy hammer they confiscated, they blessedly overlooked a second hammer the man’s mother carried in her purse.

Howard Portnoy on September 7, 2011 at 3:24 PM

They’re good at missing the second wave of “contraband.” In the story of the mentally challenged man whose plastic toy hammer they confiscated, they blessedly overlooked a second hammer the man’s mother carried in her purse.

Howard Portnoy on September 7, 2011 at 3:24 PM

But the terrorists will never find out about that. Oh wait…

She absolutely did rape her. And it certainly was to teach her a lesson. That lawyer’s letter is awesome and I hope it makes the rounds at every TSA water cooler from now on. Let them be afraid for a change – totalitarian thugs.

inviolet on September 7, 2011 at 5:03 PM

“Butbutbut….Matt Drudge called me Big Sis! And it wasn’t in a NICE way! Waaaaaahhhh!”
–Janet Napolitano, whose rights are the only ones that matter

inviolet on September 7, 2011 at 5:12 PM

If anyone has not read the full 4page Response found on TechDirt I urge you to, it is a Master Piece

the_ancient on September 7, 2011 at 6:11 PM