## Facts

- After September 11, 2001, federal aviation authorities implemented a passenger-identification policy for commercial air travel requiring passengers either to present identification or submit to more intrusive secondary screening.
- In July 2002, John Gilmore attempted to fly from California to Washington, D.C., refused to present identification, and refused secondary screening.
- Airlines denied Gilmore boarding because he would not comply with either option.
- Gilmore learned the policy was contained in a TSA Security Directive that the Government withheld from public disclosure as Sensitive Security Information.
- The district court reviewed the directive in camera but did not disclose its contents to Gilmore.
- Gilmore sued federal officials and airlines, alleging violations of due process, the constitutional right to travel, the Fourth Amendment, and First Amendment rights, and arguing that nondisclosure created impermissible “secret law.”
- The district court dismissed the claims (including dismissal without prejudice as to one airline), and Gilmore appealed.

## Issues

1. Whether 49 U.S.C. § 46110 required challenges to the TSA directive to proceed by petition for review in the court of appeals, limiting district court jurisdiction.
2. Whether conditioning airline boarding on presenting identification or submitting to secondary screening unconstitutionally burdened the right to travel.
3. Whether the policy’s screening regime constituted an unreasonable search or seizure under the Fourth Amendment.
4. Whether nondisclosure of the security directive violated due process as “secret law” or otherwise infringed First Amendment rights (including anonymous association and petitioning).

## Decision

- The Ninth Circuit affirmed dismissal of Gilmore’s action.
- The court proceeded to address the merits of Gilmore’s constitutional claims and rejected them.
- The policy did not unconstitutionally burden the right to travel because it did not bar interstate movement, and Gilmore could fly without ID if he accepted secondary screening; other travel methods remained available.
- The screening requirements were reasonable under airport administrative-search doctrine; denial of boarding followed from refusal to comply with a lawful security program.
- Withholding the directive as Sensitive Security Information did not violate due process where the district court reviewed it in camera and the practical requirements of the policy were publicly knowable.
- The court found no First Amendment violation because the policy was content-neutral and any burden on expression or association was incidental.

## Legal Principles

- The Constitution protects interstate travel but does not guarantee access to the most convenient mode of travel; a security condition that permits travel through compliance and leaves alternatives generally does not amount to a constitutional prohibition.
- Airport screening procedures are evaluated as administrative searches and may be reasonable under the Fourth Amendment when aimed at aviation security.
- A passenger’s refusal to comply with reasonable screening conditions may justify denial of boarding without constituting an unlawful seizure.
- Nondisclosure of security directives may be consistent with due process when courts can review the operative rule in camera and affected persons have sufficient notice of the conduct required to comply.
- Content-neutral security measures generally do not violate the First Amendment when they do not target speech or association and any effects on expressive activity are incidental.

## Conclusion

The Ninth Circuit upheld the constitutionality of a federal airline-security policy requiring passengers to present identification or submit to secondary screening and held that in camera judicial review and public notice of the policy’s operative demands defeated claims that the undisclosed directive amounted to unconstitutional “secret law.”


Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006)