“Right to Travel” analysis

Does the “right to travel,” as recognized by the Supreme Court, include the right to travel without showing identification, and is it bolstered by a traveler’s rights to associate, assemble, and petition the government under the First Amendment or the right to exercise one’s First Amendment rights anonymously?

As the Center for Constitutional Rights and PrivacyActivism pointed out in their amicus brief in support of John Gilmore’s Ninth Circuit appeal, “freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901 (1986). Recently, in Saenez v. Roe, 526 U.S. 489, 498 (1999), the Supreme Court reaffirmed the principle that the right to travel from one State to another is “so important that it is . . . a virtually unconditional personal right, guaranteed by the Constitution to us all.” In Saenez, the Court explained that the right-to-travel doctrine embraces at least three components. It protects: (1) the right of a citizen of one State to enter and leave another State; (2) the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, (3) for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state. 526 U.S. at 500. The Saenez Court held that the second and third components of the right to travel are protected by the Privileges and Immunities Clause of Article IV, § 2 of the Constitution, and that the third aspect of the right to travel is also protected by the privileges and immunities clause of the Fourteenth Amendment. Id. at 501-02.

The first of the three components was not at issue in Saenez, so the Court expressly declined to identify its Constitutional source, stating “The right of free ingress and regress to and from neighboring States, which was expressly mentioned in the text of the Articles of Confederation, may simply have been conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.” Id. at 501 (internal citations omitted)

In Kent v. Dulles, 357 U.S. 116, 125-27 (1958), a case discussing restrictions on international travel, the Court rooted the right to travel in the Fifth Amendment. “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage.”

Regardless of its Constitutional or historical source, does that right to travel or move freely encompass the right to fly or use other means of transportation without providing identification?

Cases directly addressing whether an ID requirement presents an unconstitutional burden on the right to travel are few and far between, and I have found none holding an ID requirement unconstitutional. There are a handful of federal appellate cases flatly rejecting the proposition that requiring a motorist to possess a drivers’ license unconstitutionally burdens the right to travel, but such cases tend to focus on the legitimacy of requiring a license for the operation of a motor vehicle. See, e.g., Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) (right to interstate travel not implicated by requirement that driver provide social security number in order to obtain drivers’ license since there is no fundamental “right to drive”).

The Ninth Circuit held that Gilmore did not have standing to challenge anything but the identification policy’s impact on air travel and held that “burdens on a single mode of travel do not implicate the right to interstate travel.” Gilmore v. Gonzales, 435 F.3d 1125, 1136 (9th Cir. 2006). It also held, in the alternative, that the right to travel involves the right to travel throughout the United States uninhibited by statutes, rules, or regulations, which unreasonably burden or restrict this movement. Id. at 1137 (citing Shapiro v. Thompson, 394 U.S. 618, 629 (1069), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 670-71 (1974)). The Gilmore court held that the identification policy’s burden was not unreasonable.

What is the likelihood that courts, particularly the Supreme Court, will consider requiring the presentation of ID to be an unreasonable burden on travel? And is “reasonableness” the proper standard to apply?

In United States v. Smith, 426 F.3d 567 (2d Cir. 2005), for example, the Second Circuit Court of Appeals held that a post-9/11 security measure requiring individuals to present photo identification to enter a federal court house did not violate the First or Sixth Amendments rights to a public trial. The Smith court applied an “undemanding” standard to decide whether security standards justified the photo identification requirement: whether the partial closure of the courtroom that resulted from the ID requirement was justified by a “substantial reason.” 426 F.3d at 573. The court held that the District Court’s “common sense” conclusion that someone who is forced to identify himself is less likely to pose a threat than someone who is allowed to enter the courthouse without identification sufficed to satisfy the test. The court in Smith reached this result despite the fact that the Second Circuit had recognized for the first time an individual’s First Amendment right of access to judicial proceedings. Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2005).

The Right to Travel as Linked to First Amendment Rights. Gilmore may want to argue that courts should apply a stricter standard than “reasonableness” – perhaps something akin to “strict scrutiny” - particularly because his right-to-travel claim can be viewed as tied to the First Amendment right to associate, assemble and petition the government for redress. (Gilmore was attempting to fly to Washington, D.C. so that he could exercise his First Amendment rights there.)

Does Gilmore have an argument that the court should apply a stricter standard because his right to travel is arguably intertwined with his First Amendment rights to associate, assemble, and petition the government?

Although there are several lines of cases linking the right to travel to First Amendment rights, they may not provide sufficient support in Gilmore’s case.

Courts generally do not subject laws or regulations to heightened First Amendment scrutiny simply because they will have some effect on the First Amendment activities of those subject to the sanction. Talk of the Town v. Dept. of Finance and Business Services, 343 F.3d 1063, 1069 (9th Cir. 2003). Instead, courts have held that generally applicable regulations of conduct implicate the First Amendment only if they (1) impose a disproportionate burden on those engaged in First Amendment activities, or (2) constitute governmental regulation of conduct with an expressive element. Id., citing Nunez v. City of San Diego, 114 F.3d 935, 950 (9th Cir. 1997) and United States v. O’Brien, 391 U.S. 367 (1968). The question for Gilmore’s case may be whether the ID requirement has a significant enough impact on his ability to exercise his First Amendment rights to petition, assemble, and associate, or to exercise his First Amendment rights anonymously.

The Curfew Cases. One line of cases tying the right to travel or the right of “freedom of movement” to First Amendment right involves constitutional challenges to curfew and loitering ordinances, which restrict the right of movement within communities.

In Waters v. Barry, 711 F. Supp. 1125 (D.D.C. 1989), the court held that the “right to walk the streets, or to meet publicly with one’s friends for a noble purpose or for no purpose at all” is rooted in the First Amendment’s protection of expression and association, as well as the Fifth Amendment’s protection of fundamental liberty interests. 711 F. Supp. at 1134. The court viewed the ability to “move about,” without papers and to “partake in activities that expand the mind and the soul” as “a cherished end in itself” and entertained a direct facial challenge to the curfew ordinance in question Id.

Most cases that link the First Amendment and the right to move freely examine restrictions on the plaintiff’s right to speak, associate, assemble, or otherwise exercise the rights traditionally associated with the First Amendment. Although one can argue that the act of flying in an airplane is itself a First Amendment right, it seems highly unlikely that the current Supreme Court would adopt that reasoning. The ID requirement at issue is likely to be viewed not as a direct regulation of First Amendment activity, but as having an incidental impact on Gilmore’s ability to petition, assemble, and associate.

The Ninth Circuit, in Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997), held that a juvenile curfew ordinance was unconstitutional on its face because it restricted minors’ ability to engage in many First Amendment activities during curfew hours. The court held that a facial challenge was appropriate since the curfew restricted access to all public forums and prohibited conduct “that is a necessary precursor to most public expression.” 114 F.3d at 950. In a sense, being able to travel to one’s intended destination is also a “necessary precursor to most public expression.” This is a broad interpretation of the First Amendment, however, and one unlikely to be adopted by the current Supreme Court.

In City of Chicago v. Morales, 527 U.S. 41 (1999), the Court struck down the city’s anti-loitering law as unconstitutionally vague. In so doing, the court expressly equated the right to loiter with the right to travel. Id. at 54 (”[I]t is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is ‘a part of our heritage.’”). But while the Court was willing to entertain a facial challenge to the ordinance on due process grounds, it was unwilling to draw the link to First Amendment associational interests even though the law was intended to combat “gang congregations.” As a plurality of Justices Stevens, Souter and Ginsburg noted: “We agree with the city’s submission that the law does not have a sufficiently substantial impact on conduct protected by the First Amendment to render in unconstitutional.” Id. at 52-53. If Justices Stevens, Souter and Ginsburg were unwilling to draw that link, it is unlikely that the current court will find a sufficiently strong First Amendment connection in Gilmore’s case.

International Travel Cases. Another line of cases discussing the right to travel in conjunction with First Amendment rights involves direct and incidental restrictions on international travel. The right to travel internationally derives from the Fifth Amendment’s Due Process Clause. See Kent, 357 U.S. at 117-118. Thus, courts apply due process analysis in assessing whether a statute or regulation unconstitutionally restrains the right. The proper standard of review - rational basis review, intermediate scrutiny, or strict scrutiny – appears to be unclear. Some circuit courts have rejected heightened scrutiny in the international travel context. Whether First Amendment rights are implicated may affect the standard of review.

In Aptheker v. Secretary of State, 378 U.S. 500 (1964), the Court held that a section of the Subversive Activities Control Act making it a felony for a member of a Communist organization to apply for, use or attempt to use a passport was unconstitutional on its face. The Court explained that the government’s interest in protecting national security could not so broadly stifle the Fifth Amendment right to travel internationally. 378 U.S. at 514. The Aptheker plaintiffs also argued that the statute was unconstitutional because it violated the First Amendment right of association. Id. at 504, n.4. Although the Court did not decide the case on First Amendment grounds, a discussion of First Amendment rights was integral to the discussion. The Court rejected the government’s argument that one could still obtain a passport by abandoning Communist party membership as an infringement on the First Amendment right of association. Id. at 507.

In cases where the statute or regulation at issue was narrower in scope or reach than in Aptheker, the Court has upheld international travel restrictions on national security grounds. Haig v. Agee, 453 U.S. 280 (1981) upheld a regulation denying passports to persons whose activities abroad would endanger national security or the foreign policy. In this case, a former CIA agent was denied a passport because of the risk that he would expose CIA agents to hostile governments. In Zemel v. Rusk, 381 U.S. 1, 16 (1965), the Court upheld travel restrictions to Cuba as justified by “the weightiest considerations of national security.”

In addition to direct restrictions on international travel, at least one Supreme Court case addresses provisions that indirectly impact the right to travel internationally. In Califano v. Aznavorian, 439 U.S. 170 (1978), the Court upheld a law the imposed a burden on international travelers by suspending their Supplemental Security Income payments while they freely traveled outside of the United States for periods exceeding 30 days. The Court employed a standard akin to a rational basis review and concluded that the provision passed Constitutional muster. The Court observed that there were crucial differences between the right to interstate travel, which is “virtually unqualified” and international travel, which “is no more than an aspect of the ‘liberty’ protected by the Due Process Clause” and could therefore be regulated within the bounds of due process. 429 U.S. at 175-77.

Recently, in Eunique v. Powell, 301 F.3d 971 (9th Cir. 2002), the Ninth Circuit examined the constitutionality of a statute and regulation that provide for denial of a passport to a parent who is substantially in arrears in child support. Judge Fernandez drafted the opinion, holding that the that the provision withstood rational basis review and did not violate due process.

Judge McKeown concurred, writing separately to express the view that intermediate scrutiny was the proper standard of review for assessing international travel except to the extent that First Amendment concerns were not implicated. 301 F.3d at 976-78. Judge Klienfeld dissented, opining that provisions restricting international travel should be “carefully tailored” to enforce “important legal objectives” such as national security or foreign policy concerns, and concluding that the provisions at issue did not meet this standard. Id. at 979–85. The dissent focused on whether the law or regulation imposed a direct restriction on travel or an incidental burden on travel, the extent to which international travel was curtailed by the provision (i.e. all international travel versus travel to one country). Id.

Eunique is helpful for at least two reasons. First, the full panel appears to agree, based on Supreme Court precedent, that the right to interstate travel is a fundamental right subject to heightened scrutiny. Second, two of the three judges agreed that where First Amendment concerns are implicated, as in Aptheker, a heightened standard of review is warranted. This provides support for Gilmore’s argument that the ID requirement should be subject to heightened scrutiny if First Amendment concerns are implicated.

There are several reasons why the international travel cases may only get Gilmore so far, however. The passport cases are distinguishable in that the denial of a passport equates to denial of the right to travel abroad in most situations. One cannot travel to most countries outside of North America without a passport. Requiring travelers to show photo identification to board a plane or access other means of interstate travel does not completely deprive one of the right to travel to a different state. As the Ninth Circuit pointed out in Gilmore, one can travel by private car driven by another person, even if such transportation is inconvenient.

Moreover, the ID requirement does not prevent travel for anyone willing to comply with it. To the extent that being required to produce identification in order to travel implicates a First Amendment right to remain anonymous, however, the reasoning of the Supreme Court in Aptheker and the analysis of the Ninth Circuit majority in Eunique may be helpful.

Finally, and perhaps most importantly, the international passport cases do not address whether a requirement that one present photo ID before traveling is sufficiently burdensome to unconstitutionally impair fundamental rights.

The First Amendment Right to Remain Anonymous. Another approach may be to argue that the First Amendment protects one’s right to remain anonymous, and that right should include the right to travel and move about anonymously. The cases discussing the right to exercise one’s First Amendment rights anonymously typically involve the right to engage in door-to-door religious or political canvassing or some other form of direct speech. In Thomas v. Collins, Sheriff, 323 U.S. 516, 539 (1944), the Supreme Court invalidated on First Amendment grounds a state statute that required labor organizers to register and obtain a card before making speeches to assembled workers. More recently, in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002), the Court held that a city ordinance that made it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violated the First Amendment as it applies to anonymous political speech, proselytizing, and the distribution of handbills. The Court explained that the requirement that compliance with the ordinance necessarily resulted in a surrender of anonymity. The ordinance therefore had the potential to preclude persons from canvassing for unpopular causes. See also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-42 (1995) (the desire to preserve one’s anonymity may be motivated by, among other things, “the desire to preserve as much of one’s privacy as possible”).

I have not found successful First Amendment anonymity claims that did not involve direct speech, however. Cases involving the right to associate, assemble and petition anonymously, on the other hand, do not appear to have been as successful.

The problem with the anonymity argument may be that the identification requirement at issue in Gilmore’s case does not directly regulate one’s ability to participate in First Amendment activity. As the plurality opinion in Morales suggested, the Court is unlikely to “fill in the gaps” of a constitutional challenge even where First Amendment rights may reasonably said to be implicated. If Gilmore could show that the security justifications for the identification requirement was mere pretext for preventing him from anonymously exercising his First Amendment rights, this line of authority might be persuasive. Such evidence appears to be lacking, however.

Finally, even if First Amendment concerns are implicated, subjecting the ID requirement to heightened scrutiny, the requirement may well withstand such review. Airline security is likely a compelling government interest, and being asked to produce photo identification is not considered by the mainstream to be extremely burdensome or overly intrusive. The recent cases involving courthouse access in the Second Circuit illustrate this point. Although that court recently recognized an individual’s First Amendment right of access to judicial proceedings in Huminski, it nevertheless found that a photo ID requirement as a condition of courthouse access was reasonable in Smith. Moreover, while courthouse access may be presumed to be a First Amendment activity, travel may be, but is not necessarily, a component of expressive conduct. Thus, it appears that Gilmore’s right-to-travel and First Amendment arguments will continue to face an uphill battle.

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