Oh, Amtrak. One employee plus one passenger plus one mistake is going to add up to a pretty big problem. We may all want to grab some popcorn, because this is going to be good. On Friday, Melissa Stone boarded Amtrak in Chicago, bound for Seattle, wearing a small white button that read “Love Trumps Hate.” NBD, right? Well, it shouldn’t have been a problem, but an Amtrak sleeping car attendant saw the button and recognized the slogan used during Hillary Clinton’s failed presidential campaign. The attendant insisted that Stone remove the button, citing Amtrak’s policy to “prevent friction between passengers.”
Melissa Stone responded:
— Melissa (@feytwee) October 27, 2017
…and set Twitter on fire:
Your button isn’t even explicitly political. WTAF. Have you contacted @ACLU? This is huge.
— Erin Conroy (@chargrille) October 28, 2017
Unless you work for Amtrak they can’t tell you to remove your political button.
— Jackie Y’Soto (@JaxYSoto) October 29, 2017
— Robert Sandera (@RobertSandera) October 29, 2017
Harvard Law Professor Laurence Tribe said it best, though:
— Laurence Tribe (@tribelaw) October 29, 2017
Amtrak has since apologized to Stone, and has specifically explained that the demand was not the product of Amtrak official policy, but was rather the unilateral mistake of one misinformed employee. That’s all good, except that in this context, Amtrak actually is the government.
Amtrak, founded in 1971 by the Rail Passenger Service Act is managed and operated as a for-profit corporation, but is primarily federally-funded and federally-owned. Amtrak’s board of directors is appointed by the president of the United States under 49 U.S.C. § 24302. In other words, Amtrak is a government agency. That’s not just my opinion, either. In 1995, the United States Supreme Court held in Lebron v. National Railroad Passenger Corporation, that Amtrak is a government agency and thus is subject to the First Amendment. Let me say that again. Amtrak isn’t like the government or a “quasi-government” agency. It is a government agency, just like all the other ones with three letters for names.
As a government entity, Amtrak is legally bound to uphold the Constitution, including but not limited to the First Amendment. Under the law (and contrary to cable news’ incessant oversimplification of the issue), not all speech is protected by the First Amendment. Some categories – such as defamation, obscenity, and perjury, to name a few – are simply not protected by the First Amendment; therefore, speech that falls into those categories can be legally regulated, or even prohibited by the state or federal government. But speech that doesn’t fall within one of the specifically unprotected categories cannot legally be regulated for its content. If you’re thinking that a button saying “love trumps hate” doesn’t sound particularly obscene, defamatory, or perjurious, you’d be right. If you’re thinking that political speech is precisely the kind of speech the First Amendment was written to protect, you’d be even more right.
So where does that leave us? We’ve got a federal agency making a content-based regulation of the protected speech of a woman who happened to be traveling with her partner to celebrate their 10th anniversary. Or in other words, a giant foul-up at which Amtrak is going to have to throw some serious damage-control dollars.
The spin doctors have been hard at work all weekend; Amtrak spokesman Marc Magliari apologized for the incident and blamed it all on the employee’s misunderstanding Amtrak’s policy prohibiting passengers from being disruptive. There’s no doubt that from a legal standpoint, the mistake of one confused employee is better than a sweeping entity-wide policy, but the legal theory of respondeat superior, Amtrak is responsible for the actions of its operators.
Amtrak has been silent regarding its actual policy on potentially incendiary clothing, its applicable training policy, or the consequences to the employee involved in this incident – likely because its legal team is knee-deep in prepping for the ACLU’s imminent lawsuit.
LawNewz has reached out to Amtrak for comment, but has yet to receive a response. We’ll keep you posted as the story develops.
This is an opinion piece. The views expressed in this article are those of just the author.