Frisking away our freedoms

By A TIMES EDITORIAL
Published July 5, 2007

Gordon Johnston, left, sued to end patdown searches.
	[Carrie Pratt | Times, 2006]

Fans of the Tampa Bay Buccaneers are asked to pay a lot of money and sit in the hot Florida sun to root for a team that has disappointed them in recent seasons. They shouldn't also have to give up their privacy and dignity as the price of admission.

Patdown searches are physically intrusive and objectionable. Even in airports such searches are scrupulously avoided, except for a small subset of passengers, because of their invasive nature. The use of this technique by the National Football League for every patron is simply not justified. Greg Aiello, a spokesman for the NFL, says they have done "millions of these limited patdowns" but so far haven't found a single improvised explosive device or terrorist.

Nonetheless Aiello justifies the policy by suggesting that the patdowns may have prevented an attack.

But other professional teams and college sports programs that fill stadiums have not felt the same need to physically intrude on their fans' bodies in order to provide security. They have also been attack-free.

To be sure, terrorists could strike anywhere - at a crowded mall, on a rush-hour bus, or at a ballpark. But no security measures can eliminate all risk, and a balance has to be struck between providing protection and preserving a free society that respects individual autonomy. Life should not become a series of patdowns and other invasive searches as we navigate through our day.

The 11th U.S. Circuit Court of Appeals' decision to set aside a lower court ruling that had found the patdown searches at Bucs games to be unconstitutional reflects a crimped view of the privacy protections of the Fourth Amendment. The appellate court said that Gordon Johnston, the season-ticket holder who sought to end the searches, had consented to them when he allowed himself to be subjected to patdowns upon entering the stadium.

For consent to be free and knowing, it has to come without coercion. Johnston had no choice but allow the search to proceed after verbally objecting to it. Otherwise he would have been barred from the game. He says he was told that he would not be reimbursed for his tickets.

Johnston has said he doesn't want to give up his tickets, even if the team would refund his money (which of course it should do for anyone objecting to the patdowns). He wants to be able to attend games without being frisked by a security guard and without having to give up his right to be free from dragnet-type searches. That isn't too much to ask.

"A generalized fear of terrorism should not diminish the fundamental Fourth Amendment protection envisioned by our Founding Fathers, " U.S. District Judge James Whittemore wrote in 2006, ruling that the Tampa Sports Authority's searches at Bucs games were unconstitutional. "Utilizing mass suspicionless patdowns simply goes too far."

This is the enlightened decision that the 11th Circuit set aside. Johnston should continue to press his case in court, and the NFL should reconsider its cavalier treatment of fans. The patdowns provide little more than the illusion of security, but they tangibly reduce American freedom.

[Last modified July 4, 2007, 21:11:03]