Amy Alkon, the Advice Goddess, had a bad run-in with a TSA agent. Of course, we have no legal right to hold the TSA or its agents accountable for acting like complete and total jerks, so she wrote about her experience. As only a writer could write.
And, God love her, she named the agent.
The agent threatened a lawsuit against her and demanded $500,000. (Read the letter sent by the agent’s lawyer here.)
Alkon hired lawyer Mark Randazza, a First Amendment lawyer. His letter in response is a true work of art, an excellent example of a fine lawyer doing first-rate work. An excerpt:
Your client aggressively pushed her fingers into my client’s vulva. I am certain that she did not expect to find a bomb there. She did this to humiliate my client, to punish her for exercising her rights, and to send a message to others who might do the same. It was absolutely a sexual assault, perpetrated in order to exercise power over the victim. We agree with Ms. Alkon’s characterization of this crime as “rape,” and so would any reasonable juror.
Furthermore, even if your client did not actually sexually assault my client, Ms. Alkon’s statements to and about Ms. Magee would still be protected by the First Amendment. The word “rape” itself has been the subject of defamation cases by far more sympathetic Plaintiffs than your client. In Gold v. Harrison, 962 P.2d 353 (Haw. 1998), cert denied, 526 U.S. 1018 (1999), the Hawai’i Supreme Court held that a defendant’s characterization of his neighbors’ seeking an easement in his backyard as “raping [the defendant]” was not defamatory. This speech was protected as rhetorical hyperbole. Of course, we need not seek out Hawai’i case law in order to debunk your unsupportable claims. Rhetorical hyperbole has a strong history of favorable treatment in defamation actions. See Greenbelt Cooperative Pub. Ass’n v. Bresler, 398 U.S. 6, 14 (1970). This doctrine acknowledges our First Amendment right to express ourselves, even when employing literary license. Accordingly, even if your client’s actions were not “rape,” Ms. Alkon had every right to characterize them as such.
No free woman should endure what your client did to Ms. Alkon. Fortunately, Ms. Alkon is capable of recognizing injustice, and for the good of us all, she had the courage to speak out on this matter of public concern of the highest order. After Magee’s assault on Ms. Alkon’s vagina and dignity, Ms. Alkon exercised her First Amendment right to recount this incident to others in person and through her blog. This was not only her right — it was her responsibility.
Thanks to Eric Turkewitz at the New York Personal Injury Law Blog for sharing this information.