right to travel bill of rights

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The Right to Travel: A Fundamental Right of Citizenship

The right to travel within the United States is a fundamental right, existing before the creation of the United States and appearing in the Articles of Confederation. The right to travel is recognized and protected by the U.S. Constitution and the Supreme Court. This travel right entails privacy, leaving citizens free to travel interstate without government interference and intrusion. In the post-hijacking surveillance society, the imposition of official photo identification for travel, watch-list prescreening programs, and airport screening and search methods unreasonably burden the right to travel. They undermine citizens' rights to travel and privacy. These regulations impermissibly require citizens to relinquish one fundamental right of privacy in order to exercise another fundamental right of travel. The original conception of travel rights embodies the right as a broadly-based one that encompasses all modes of transportation. Its explicit articulation in the Articles of Confederation remains implicit in the Privileges and Immunities Clause of the U.S. Constitution. Contrary to arguments in the appellate single mode doctrine, if any mode of travel is abridged, then citizens' constitutionally enshrined right to travel is violated. The Supreme court needs to articulate an originally consistent and politically robust doctrine of the multi-modal right to travel.

• Find a library where document is available. Order URL: http://worldcat.org/oclc/31144651
• Sobel, Richard
• Torres, Ramon L
• Publication Date: 2013
• Media Type: Print
• Features: References;
• Pagination: pp 13-47
• Journal of Transportation Law, Logistics and Policy
• Issue Number: 1
• Publisher: Association for Transportation Law, Logistics and Policy
• ISSN: 1078-5906
• Serial URL: http://www.atlp.org/journal.html

Subject/Index Terms

• TRT Terms: Air travel ; Interstate transportation ; Legal rights ; Passenger handling ; Privacy ; Travel ; Travel modes
• Geographic Terms: United States
• Subject Areas: Aviation; Law; Passenger Transportation; I10: Economics and Administration;

Filing Info

• Accession Number: 01489821
• Record Type: Publication
• Files: TRIS
• Created Date: Aug 15 2013 9:13AM

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Home > JITPL > Vol. 30 > Iss. 4 (2014)

UIC John Marshall Journal of Information Technology & Privacy Law

Article title.

The Right To Travel And Privacy: Intersecting Fundamental Freedoms, 30 J. Marshall J. Info. Tech. & Privacy L. 639 (2014)

Richard Sobel

As a fundamental right inherent in American citizenship and the nature of the federal union, the right to travel in the United States is basic to American liberty. The right precedes the creation of the United States and appears in the Articles of Confederation. The U.S. Constitution and Supreme Court recognize and protect the right to interstate travel. The travel right entails privacy and free domestic movement without governmental abridgement.

In the era of surveillance, the imposition of official photo identification for travel, watchlist prescreening programs, and invasive airport scans and searches unreasonably burden the right to travel. They undermine citizen rights to travel and to privacy. These regulations impermissibly require citizens to relinquish one fundamental right of privacy in order to exercise another fundamental right of travel. The government must preserve these rights in addressing policy goals. The original conception of the right to travel embodies it as a broadly-based freedom that encompasses all modes of transport. Its explicit articulation in the Articles of Confederation became implicit in the Privileges and Immunities Clause of the Constitution. Contrary to the appellate “single mode doctrine,” abridgement of any mode of transportation undermines the constitutionally enshrined travel right. The U.S. Supreme Court needs to rearticulate an originally consistent and politically robust multi-modal right to travel.

Recommended Citation

Richard Sobel, The Right To Travel And Privacy: Intersecting Fundamental Freedoms, 30 J. Marshall J. Info. Tech. & Privacy L. 639 (2014)

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DOT Announces First-Ever Bill of Rights for Passengers with Disabilities, Calls on Airlines to Seat Families Together Free of Charge

In its ongoing work to protect airline passengers, USDOT moves forward with pro-consumer actions 

WASHINGTON – As the busy summer travel season continues, U.S. Transportation Secretary Pete Buttigieg today announced actions taken by the U.S. Department of Transportation (USDOT) to help protect airline passengers. USDOT has published the first-ever Airline Passengers with Disabilities Bill of Rights and issued a notice to airlines to seat young children next to a parent. 

“Today’s announcements are the latest steps toward ensuring an air travel system that works for everyone,” said U.S. Transportation Secretary Pete Buttigieg . “Whether you’re a parent expecting to sit together with your young children on a flight, a traveler with a disability navigating air travel, or a consumer traveling by air for the first time in a while, you deserve safe, accessible, affordable, and reliable airline service.” 

These announcements come at a time when consumer complaints against airlines are up more than 300% above pre-pandemic levels . 

The actions announced by the Department today include:  

Publishing the First-Ever Bill of Rights for Airline Passengers with Disabilities  

The Airline Passengers with Disabilities Bill of Rights , an easy-to-use summary of the fundamental rights of air travelers with disabilities under the Air Carrier Access Act, will empower air travelers with disabilities to understand and assert their rights, and help ensure that U.S. and foreign air carriers and their contractors uphold those rights. It was developed using feedback from the Air Carrier Access Act Advisory Committee , which includes representatives of passengers with disabilities, national disability organizations, air carriers, airport operators, contractor service providers, aircraft manufacturers, wheelchair manufactures, and a national veterans organization representing disabled veterans. The Bill of Rights provides a convenient, easy-to-use summary of existing law governing the rights of air travelers with disabilities.   

Calling on Airlines to Seat Parents with their Children  

Today, USDOT’s Office of Aviation Consumer Protection (OACP) issued a notice urging U.S. airlines to ensure that children who are age 13 or younger are seated next to an accompanying adult with no additional charge. Although the Department receives a lower number of complaints from consumers about family seating than some other flight issues, there continue to be complaints of instances where young children, including a child as young as 11 months, are not seated next to an accompanying adult. Later this year, OACP will initiate a review of airline policies and consumer complaints filed with the Department. If airlines’ seating policies and practices are found to be barriers to a child sitting next to an adult family member or other accompanying adult family member, the Department will be prepared for potential actions consistent with its authorities. 

Addressing Consumer Complaints and Refunds  

The latest Air Travel Consumer Report , released last month, shows consumer complaints against airlines are up more than 300% above pre-pandemic levels. 

Similar to 2020 and 2021, refunds continue to be the highest category of complaints received by the Department and flight problems is the second highest. 

To process and investigate these voluminous complaints, USDOT increased staff handling consumer complaints by 38%. OACP has initiated investigations against more than 20 airlines for failing to provide timely refunds. One of these investigations resulted in the highest penalty ever assessed against an airline .   

In addition, OACP continues to monitor airline delays and cancellations to ensure airline compliance with consumer protection requirements. USDOT is considering future action in this area to better protect consumers. USDOT also intends, later this year, to issue consumer protection rulemakings on airline ticket refunds and transparency of airline ancillary fees. 

Consumers may file air travel consumer or civil rights complaints with the USDOT if they believe their rights have been violated. Additional information and resources on the rights of consumers, including information on how to file a complaint, can be found here .  

Will new airline consumer protection rules help you when you fly this summer?

You've probably heard about the new airline consumer protection rules that rolled out with a one-two punch last month. There were so many, it's almost hard to keep track. And maybe you're saying to yourself: Finally, I'll have some rights when I fly.

Please, don't get too excited.

"It's a good start," said Anthony Radchenko, CEO of AirAdvisor , a company that helps consumers file airline complaints.

Check out   Elliott Confidential , the newsletter the travel industry doesn't want you to read. Each issue is filled with breaking news, deep insights, and exclusive strategies for becoming a better traveler. But don't tell anyone!

The new rules address everything from junk fees to refunds, and although they may have some unintended consequences, they could help passengers – but those are expected to take effect until later, so not in time for the upcoming summer travel season.

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What did the government do?

Here's what's new:

• Two new consumer protection rules. The Department of Transportation (DOT) released final versions of two new rules to protect passengers. One requires airlines to quickly and automatically refund tickets when they cancel or significantly delay a flight. The other requires airlines to disclose any fees for checked or carry-on luggage, as well as for changing or canceling a reservation, at the same time, they display a fare quote. 
• States will handle some airline complaints. The federal government also announced a partnership with 18 state attorneys general . The agreement allows states to investigate airlines and ticket agents and hold them accountable when they violate aviation consumer protection laws.
• New refund laws and minimum seat sizes. The latest version of the Federal Aviation Administration Reauthorization Bill contains a new rule that would require airlines to refund a domestic flight if it's delayed more than three hours. For international flights, it's six hours. It prohibits airlines from charging fees for families to sit together. Also on deck: a requirement that the FAA take another look at minimum seat sizes.

The new DOT rules go into effect in late June but have an implementation period of 6 to 12 months. Some, like the seat standards, might never happen. So don't expect to see new junk fees disclosed or to get a lightning-fast refund this summer—maybe next summer.

Turbulent skies ahead for new consumer protections

At least one of the rules may backfire, warn travel experts. Among the consumer protections is a requirement that a merchant of record must issue a refund for an airline ticket. That means unless you booked a ticket directly with the airline, your travel advisor – not the airline – would be responsible for a prompt ticket refund. In other words, the money would come out of your advisor's pocket and then force the agent to negotiate with the airline for the money.

"I'm already seeing travel advisors who had been providing flight booking services to their clients, who are now choosing not to offer that service," said travel advisor Brandi Taylor. "This will be a major inconvenience to consumers." 

So this summer, if you're booking a trip through a travel advisor, they might tell you to buy the airline tickets yourself. They don't want to be on the hook for refunding the money your airline has already received for your flights.

That's not the only problem. There's a conflict between the FAA bill and DOT’s new rule requiring automatic cash refunds for flight cancellations and delays. Congress doesn't want the refund to be automatic. Bill McGee, a senior fellow for aviation at the American Economic Liberties Project, said a lot of money is at stake in unpaid refunds.

"Airline lobbyists are fighting tooth and nail to ensure the onus remains on consumers to jump through hoops, rather than having carriers issue automatic refunds," he said. "The DOT has stepped up to protect passengers. Now it's time for Congress to do the same."

Asked about which rules would take precedence in the event of a conflict, a DOT spokeswoman said the agency's rule is "solidly rooted in DOT’s legal authority." So if there's a conflict the DOT rule would prevail.

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Will these consumer rules really help you?

"I'm skeptical," said Steven Rothberg, the founder of a job search site in Edina, Minnesota.

Like many experienced air travelers, he's seen this kind of thing before. The government promises protections, people get excited – and then there's no meaningful follow-through. 

Take seat sizes, for example. Airline seats are too small for the average passenger. So in 2018, Congress required the FAA to set minimum seat sizes. But to this day, there is no minimum seat standard, forcing air travelers to wedge themselves into tiny economy-class seats. 

There are also worries that airlines will quickly find a way around all these new rules, leaving passengers unprotected.

Travelers have every reason to be concerned. Airlines are clever and often find ways around new government rules. For example, if the government requires the disclosure of a junk fee like baggage charges, airlines will come up with a new charge not covered by the regulation to make up for it. It's a cat-and-mouse game, and the airlines always seem to have the upper hand. 

When will the new consumer rules go into effect?

So what's likely to happen? In the short term, not much.

Jonathan Feniak, a frequent traveler and attorney, said airlines will stall for as long as possible.

"I don’t expect airlines to adopt the new rules until they absolutely have to," he said. "Especially during one of their busiest seasons, when delays and cancellations are bound to happen."

He said some forward-looking airlines may decide to adopt some of the requirements early, but it will also take some time for passengers to learn about their new rights.

On balance, he said the changes are a significant upgrade.

"It will mean fewer passengers being taken advantage of," he said.

A problem of enforcement

Here's the trouble with the new rules: There's some doubt the government will effectively enforce them. 

The DOT, which is in charge of enforcing the existing consumer rules, hasn't issued an enforcement action since December. It's one of the longest stretches of time without such action in years.

Think of enforcement actions as traffic tickets. And now there's a perception that airlines can get away with anything, according to Radchenko of AirAdvisor. Out of almost 300 complaints he filed in the last year, he said  DOT has not made any decision or issued enforcement action.

He said the government must prescribe penalties for airlines that ignore or fail to comply with the new rules for the new rules to work.

"They also need to provide the right to recover attorney's fees and legal costs for consumers bringing a lawsuit against an airline," he said.

What do we really need?

The bottom line for passengers is that almost none of the consumer protections will improve your summer flight. It may even be too soon for your Thanksgiving flight, and if there's a change of administration this November, some of these rules may never be implemented.

The gold standard for consumer protection, at least according to consumer advocates, is a rule in Europe called EC 261 . It requires airlines to assist passengers and compensate them when they're denied boarding or their flights are canceled or delayed.

For now, you have the same rights you always had when you flew in the U.S., which is to say, not many. 

Christopher Elliott  is an author, consumer advocate, and journalist. He founded  Elliott Advocacy , a nonprofit organization that helps solve consumer problems. He publishes  Elliott Confidential , a travel newsletter, and the  Elliott Report , a news site about customer service. If you need help with a consumer problem, you can  reach him here  or email him at  [email protected] .

House signs off on FAA bill that addresses aircraft safety and the refund rights of passengers

C ongress gave final approval Wednesday to a $105 billion bill designed to increase the number of air traffic controllers, add more safety inspectors at aircraft factories, and require airlines to automatically pay refunds to travelers whose flights are canceled or significantly delayed.

The House passed the measure to reauthorize Federal Aviation Administration programs by a 387-26 margin and sent it to President Joe Biden. The Senate passed the measure last week .

Supporters called the provisions of the legislation a key step in improving aviation safety after a number of close calls between planes at U.S. airports in the last two years.

“This bill recognizes while our aviation system is safe, we have to continue raising the bar for safety,” said Rep. Sam Graves, R-Mo., chairman of the House Transportation Committee, which produced the first version of the legislation 10 months ago.

The Republicans and Democrats who lead the key aviation committees in the House and Senate negotiated over the bill's final shape last month, then fought off amendments that might have slowed the measure's passage.

One of the most contentious issues turned out to be the addition of 10 long-haul flights a day to and from Reagan National Airport outside Washington, D.C. Lawmakers from Virginia and Maryland tried to kill the provision.

Rep. Donald Beyer, D-Va., said the extra flights would “aggravate dangerous conditions” and cause more flight delays at the busy airport across the Potomac River from the nation's capital. But lawmakers from Western states, including Sen. Ted Cruz, R-Texas, fought for the flights, as did Delta Air Lines.

The final version of the law authorizing FAA and National Transportation Safety Board programs for the next five years checked in at more than 1,000 pages. Congress has been critical of the FAA since it approved Boeing 737 Max jets that were involved in two deadly crashes in 2018 and 2019.

The bill's major provisions include directing the FAA to hire more air traffic controllers and safety inspectors, to increase the use of collision-avoidance technology at airports and to improve access for passengers with disabilities.

It also bans airlines from charging fees to let families sit together and requires them to issue automatic refunds when flights are canceled or delayed for several hours.

Airlines are suing the Biden administration to block a new Transportation Department rule on the automatic refunds , and inclusion of the provision in law could help the administration's legal case. Graves said the issue could lead to higher fares or result in refunds to travelers who would prefer being booked on another flight, but it didn't prevent him from supporting the bill.

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House Passes Legislation to Improve Air Travel, Sending Bill to Biden’s Desk

The bipartisan vote to reauthorize the Federal Aviation Administration also greenlit measures to strengthen consumer protections and address safety and work force issues plaguing the skies.

By Kayla Guo

Reporting from the Capitol

The House on Wednesday passed legislation to reauthorize federal aviation programs and improve air travel at a time of intense passenger woes and dysfunction in the system, sending the bill to President Biden, who was expected to sign it into law.

The House approved the bill 387 to 26, days after the Senate passed it on a vote of 88 to 4.

The measure provides more than $105 billion to the Federal Aviation Administration and another $738 million to the National Transportation Safety Board for safety programs, airport modernization and infrastructure projects, technology upgrades and next-generation aviation systems. It also supports the hiring and training of air traffic controllers, codifies airlines’ refund obligations to passengers, restricts seating fees for families with children, strengthens protections for passengers with disabilities, bolsters aviation work force development programs and protects access to air travel at rural airports.

“For over a century, the United States has led the world in aviation safety and innovation, and this bill is critical to ensuring America remains the global leader in aviation,” Representative Sam Graves, Republican of Missouri and chairman of the Transportation Committee, said in a statement after the vote. “It’s vital to our economy, to millions of American jobs and to the millions of passengers that depend on our National Airspace System every single day.”

The final package, which lawmakers heralded as a timely and necessary investment in the nation’s aviation system and a win for consumers, was the product of months of negotiations between the House and Senate committees with jurisdiction over federal aviation programs. It was approved after Congress had repeatedly passed short-term extensions, blowing through several deadlines during a tumultuous period in the skies that included a spate of runway near collisions , plane malfunctions and flight disruptions.

Representative Rick Larsen of Washington, the top Democrat on the Transportation panel, said the legislation “will create a safer, cleaner, greener and more accessible aviation system here in the U.S.”

In a statement, he highlighted the measure’s safety and infrastructure improvements, the addition of well-paying aviation jobs, policies for putting forward new aviation technologies and “robust protections for airline customers.”

Among the consumer protections in the roughly 1,000-page bill is a provision codifying a new rule announced by the Transportation Department that requires airlines to “automatically” issue passengers full refunds when a flight is canceled, delayed or significantly changed. It also imposes a standard requiring that any travel credits airlines provide in lieu of refunds be viable for at least five years, and it seeks to ensure that families can sit together on flights without being charged additional fees.

The package also aims to address safety and work force challenges that have dogged the aviation system. It requires the F.A.A. to supercharge the hiring and training of air traffic controllers to help bolster a work force pushed to the brink . It directs the agency to increase the deployment of safety technologies to help stem runway near collisions. And it mandates cockpit voice recordings be preserved for 25 hours, up from two hours, to better support investigations into future safety incidents.

Lawmakers, led by Senator Tammy Duckworth, a former Army helicopter pilot who uses a wheelchair after an attack by Iraqi insurgents took her legs, inserted measures aimed at improving air travel for passengers with disabilities. The bill requires the F.A.A. to re-evaluate evacuation procedures on planes to account for passengers with disabilities and older fliers; mandates training for airport workers on handling wheelchairs; and strengthens enforcement mechanisms to ensure planes are accessible to people with disabilities.

“This F.A.A. reauthorization is a true bipartisan win for our entire economy as well as a landmark improvement for aviation safety that will benefit the flying public and consumers across this country,” Ms. Duckworth, an Illinois Democrat, said in a statement last week after the Senate passed the bill.

She called the legislation the “most significant effort by Congress in over a decade to make flying safer, easier and more accessible for passengers with disabilities.”

A number of policy disputes and regional battles slowed approval of the bill. Considered one of the last must-pass items in this Congress, the measure had become a magnet for dozens of other policy initiatives that threatened to muck up its path to passage. But those were dispensed with in the Senate last week.

The legislation prompted a bitter regional fight over a provision that will add five new long-distance round-trip flights out of Ronald Reagan Washington National Airport outside Washington, D.C., something that Delta Air Lines and members of Congress who rely heavily on the airport had long clamored for.

The four senators from Maryland and Virginia sought to strike that change, arguing that the airport maintains the nation’s busiest runway and could not support additional flights.

They were the only votes against the bill in the Senate, after Senator Ted Cruz of Texas, the top Republican on the Commerce Committee, blocked a vote on their proposal to give the transportation secretary final say on adding the new flights based on a safety and consumer experience evaluation.

The House, which passed its version of the bill last summer, had narrowly rejected a bipartisan proposal to add seven round-trip flights to Reagan National. On Wednesday, several Washington-area lawmakers voted against the bill in protest of the addition of the five round-trip flights.

“We should not accept a backroom deal between senators just to reflect special interests,” Representative Donald S. Beyer, Democrat of Virginia, said on the House floor before the vote. “It’s painful that this measure is still in the bill despite widespread bipartisan opposition. I cannot support a bill that hurts my constituents, disrespects all the elected leaders from Virginia, Maryland, and D.C. and directly harms our airport and the passengers who use it.”

The bill held the mandatory pilot retirement age at 65 after a clash over whether to raise it to 67. Proponents argued that doing so would ease a strained pilot work force. But opponents in both parties said it would not fill gaps in the work force, and would instead lead to a constellation of logistical, legal and safety concerns , as pilots older than 65 are generally barred from flying internationally.

After a fight over changing a rule that dictates the type and amount of flight time pilots must accrue to fly commercially, Congress also rejected attempts to count more hours of simulated flight time toward the 1,500-hour requirement and maintained the existing standards, which were imposed after a plane crashed near Buffalo in 2009 , killing everyone aboard.

Kayla Guo covers Congress for The New York Times as the 2023-24 reporting fellow based in Washington. More about Kayla Guo

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Concerns over free speech grow as abortion travel ban heads to Tennessee governor's desk

Some free speech advocates are raising the alarm over wording in a new Tennessee bill that could potentially restrict a person's right to speak about abortion health care.

The law, passed by Tennessee lawmakers this year, makes it a felony to recruit or transport a minor for an illegal abortion without parental consent.

HB1895 , which will soon head to Gov. Bill Lee’s desk, closely mirrors a recent law passed in Idaho, which a federal judge halted on First Amendment grounds. 

The legislation targets an adult who "recruits, harbors or transports" a pregnant minor within the state for the purposes of receiving an illegal abortion, defined by Tennessee's near-total abortion ban, or for getting abortion medication without notarized consent from the minor’s parents.

Free speech concerns from opponents of the bill are heavily centered on the word “recruit,” which is not defined in Tennessee state law, and which they say could potentially criminalize speaking to a pregnant minor about health care options.

“This bill raises concerning First Amendment issues, as the term recruits is not defined in the bill or anywhere in the Tennessee code,” said Bryan Davidson, policy director at the American Civil Liberties Union of Tennessee.

“The free expression implications are troubling. It's easy to imagine that there could be a reproductive health clinic or a clinician, non-medical counselor or a social worker, anybody who provides information or options around abortion care and counseling to pregnant minors in Tennessee, who could potentially have their free speech rights infringed upon.”

James Bopp Jr., the general counsel for the National Right to Life Committee, which helped draft model legislation on the issue, called the First Amendment concerns unfounded.

“There's no confusion about that,” he said in an interview, adding that “nobody thinks” that the word “recruit” could include “just posting information” or speaking about abortion.

Travel-ban law is slippery slope part of larger pattern, say opponents

The concern over the limitation on free speech rights under the bill is not new. In Idaho in late 2023, lawmakers passed a nearly identical law to Tennessee’s version.

The law was quickly temporarily paused by a federal judge after three plaintiffs — a lawyer and two medical advocacy groups — sued Idaho alleging the law’s language is overly vague and violates their First Amendment right to discuss abortion with minors and their Fourth Amendment right to travel between states where the procedure is legal.

Sen. Paul Rose, R-Lauderdale, and Rep. Jason Zachary, R-Knoxville, sponsors of the legislation, did not respond to multiple requests for comment.

Rep. Aftyn Behn, D-Nashville, has been one of the most vocal opponents of the bill.

Standing on the sidewalk in downtown Broadway on April 10, Behn, along with members of Abortion Care Tennessee, held a large sign aloft emblazoned with bright purple letters reading “Need an abortion? We’re here to help.”

She later described the law as “dystopian.”

“I believe that this is a test case for what is deemed constitutionally protected in an increasingly polarized kind of authoritarian environment we're seeing nationally," she said.

According to Behn, when asked about the definition of the word recruit, Zachary suggested looking the word up in a dictionary.

“Zachary was asked by my colleagues as to how he would define the word recruit,” she said. “And he generically pointed to a dictionary and said, ‘As it is in the dictionary.’ Which, you know, any dictionary, any definition is pretty broad as to what remains. And when you're dealing with a civil liability of up to a million dollars and jail time, it seems to be pretty important to know what the word recruit means.”

Behn said the concern was echoed by multiple medical professionals who spoke against the bill.

“We had a few practicing pediatricians and obstetricians comment that even them talking to minors in a grocery store might be illegal,” she said. “They weren't clear, for example, if they had a neighborhood minor that came up to them and said, ‘I'm pregnant, we're having issues,’ and whether they, as a trusted adult, would be protected under the law.”

Behn said the bill highlights how Tennessee is “on the front lines of the most extreme, post-Roe, anti-abortion legislation,” with some of the strictest abortion laws in the country.

“I think this is a test case, and it's trying to penetrate the parameters of what is protected by the First Amendment,” she said. “And I think this case will go to the Supreme Court and inevitably, whatever government is in charge at the time, will prevent free speech from happening.”

On the House floor, moments before the bill was approved, Behn attempted to pass a number of amendments to it, including one that sought to protect discussions of health care options by “trusted adults” — which included a number of health care workers, abortion clinic staff or volunteers, attorneys and more — from being held criminally liable, as long as they were not “forcing the minor” to obtain an abortion.

The amendments failed.

Davidson of the ACLU said his organization is “watching the bill,” with special attention on the key differences in Tennessee’s bill that, in his view, make it more vague than Idaho’s.

“There is a key difference in our version of the bill versus the one that was (paused) in Idaho is that the Idaho statute requires concealment from the minor’s parent or guardian as an element overall,” he said. “Whereas the Tennessee statute does not require concealment. So the criminal offense in our version applies to a much broader array of activity, and I think contributes to an even more concerning sense of vagueness.”

Davidson said this broader level of vagueness is what concerns the legal experts at the ACLU.

“They're so vaguely written that it's unclear how the law would be applied and enforced,” he said. “But what we see is that just the threat of enforcement is enough to stoke fear and confusion and leads to self-censorship that has the ultimate effect of limiting access to vital reproductive health care to folks that need it most.”

Anti-abortion advocate dismisses free speech concerns

Both the Tennessee law and the Idaho law are based on model legislation written by the National Right to Life Committee — the nation’s largest anti-abortion organization that lobbies legislatures to end abortion access.  

Bopp developed the model legislation these bills are based on and said concerns over vagueness in the bill’s language — particularly the word “recruit” — are unfounded.

When asked why a key word in his bill did not need defining, Bopp reiterated that concerns over a lack of definition were “a complete lie.”

“That's complete bulls***,” he said. “There are all sorts of words that are used in statutes that are not defined. So that's just complete bulls***. If their argument is there's not a definition in state law, then you look to the common dictionary definition. … The Supreme Court, most of the time, is looking at dictionaries to determine the meaning of words that are in statutes and have never struck down a statute based on vagueness, because a word was not defined in a statute.”

Upon inspecting court records, there have been numerous major U.S. Supreme Court cases that ruled certain laws as being “unconstitutionally vague” due to words not being defined, and references to the importance of clarity in laws dating back as far as James Madison’s Federalist Papers.

When asked how he defined the word “recruit,” written in his own model legislation for the travel ban, Bopp read the definition of the word from vocabulary.com and gave an example of what he considered illegal recruitment — an example that included speech activity.

“You can see in the vocabulary.com that it says ‘to recruit’ means ‘to get someone to join something,’ and the something here is to participate in an unlawful abortion,” he said. “You know, to go on campus and say, ‘Hey, come on with us. We will take you to in our car to go get an unlawful abortion.’”

Bopp said he did not think the word needed clarifying in bills emulating his legislation, which can be seen working their way through legislatures in numerous states.

“’Recruit’ is more specific than just providing information,” he said. “The common definition of recruit is quite adequate.”

Bopp said opponents are “just making (concerns) up because they're abortion advocates and trying to use the First Amendment as a weapon.”

William Brewer, head legal counsel and lobbyist for the Tennessee chapter of Right to Life, declined to comment on the free speech concerns but said the bill was “needed to protect underage girls from being taken for a surgical procedure or given dangerous chemicals without their parent’s knowledge or consent.”

Chemicals routinely used in abortion procedures, almost exclusively mifepristone and misoprostol, have been rated as safe by the U.S. Food and Drug Administration for 24 years.

Definitions are crucial to understand legality, says expert

Battling encroaching limitations on free speech is imperative to protecting the freedoms within the First Amendment for all, whether those limitations come through intentionally restricting legislation or from vaguely worded laws, said Kevin Goldberg, a First Amendment lawyer at the Freedom Forum in Washington, D.C.

The confusion in this law over the word “recruit” is a prime example, he said.

“I do think this is vague as written,” he said. “If you put the law in front of more than one person, and they come to clearly different results as to what it means, it's probably vague. And if it's clearly vague, it could be void — ergo unconstitutional and unenforceable.”

The reason laws are often deemed void for vagueness is twofold, he said.

“The first reason we have this ‘void for vagueness’ doctrine is because laws of this type essentially deny due process rights, which is actually a part of the 14th amendment,” he said. “The point is that I need to know that I'm going to get in trouble and be given certain protections that allow me to defend myself. I need to be fully informed that I am going to get in trouble or not based on what I'm about to do.”

Laws addressing speech issues that are too vague essentially deny citizens the ability to know whether they are allowed to speak, said Goldberg.

“The second reason is that vague laws tend to be prone to arbitrary enforcement,” he said. “So you might have a pamphlet put out about abortion by a pro-life group and a pamphlet put out by a pro-choice group, and they may look relatively similar and may even both provide information that could fall under what somebody believes is recruitment. And law enforcement may punish only one because they can manipulate the meaning of the term recruit in the statute."

Gregory Magarian, a law professor at Washington University School of Law in St. Louis and a former Supreme Court judicial clerk, noted that even including the word "recruit" in the law was an unusual choice.

"We can look to a dictionary definition and find the meaning of the word recruit, but when you look at it in the context of this statute, it's a sort of curious usage," Magarian said. "We don't normally think of 'recruiting' someone to get a medical procedure done, even if we're talking about an elective medical procedure. If I told you I thought you might benefit from plastic surgery, we wouldn't say that I recruited you to get plastic surgery. That's a really strange and non-intuitive use of the word. And so that's why it's really important to define words within their statutory context."

Magarian added that the persistence of lawmakers, in addition to the original writers of the bill, to not clarify the word recruit or add more defining language to the bill, could chill speech.

"It would certainly make sense from the standpoint of the legislature to avoid this problem by defining the term clearly," he said. "So that sort of opens up the question, 'Well, why didn't they do that?' Why didn't the sponsor on the floor not clarify this? The sort of cynical possibility is that they wanted this term to be vague — and in the free speech context, the reason that we don't like vagueness is the chilling effect on speech. It makes people self-censor. Maybe in this case, the legislature wanted to chill speech around abortion.

"The less sinister possibility is that (lawmakers) just really didn't know what they were doing and what they were enacting because it was a model legislation they picked up," he said. "It might seem politically expedient, at least before you start thinking about the constitutional implications."

Regardless of intentions, placing the onus on the person speaking to “try to figure out” whether they may break the law by speaking is simply not allowed under the constitution, Goldberg said.

“Just pointing to the fact that a word is in the dictionary and saying, ‘Well, anybody can look it up and know what it means,’ isn't a valid argument at all,” he said. “This law is going to have to either be rewritten with language directed to a definition of recruit — they're going to have to take more time on it, or the courts are going to have to deal with it.”

The USA Today Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.

Have a story to tell? Reach Angele Latham by email at [email protected], by phone at 931-623-9485 or follow her on Twitter at @angele_latham

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