Legal questions arise as many airports refuse to play Kristi Noem’s shutdown message blaming Democrats
By Alexandra Skores, CNN
Washington (CNN) — Travelers going through the Transportation Security Administration checkpoint at Detroit Metro Airport will come face-to-face with a video of Homeland Security Secretary Kristi Noem blaming Democrats for the shutdown of the federal government.
The remarkable video that injects divisive politics into the mundane process of airport security has sparked controversy as many airports refuse to show it.
The video raises questions about whether it can be legally played, if the Department of Homeland Security can require airports to show it, and what happens if airports refuse.
Checkpoints often include videos featuring government officials welcoming travelers and explanations of procedures, but they usually do not contain political messages.
CNN reached out to over 50 airports across the country varying in size; many refused to display the video on airport-owned monitors or noted they didn’t have the capabilities to show it to passengers.
Some monitors at checkpoints are owned and controlled by the airports, while others belong to the TSA.
As of Tuesday afternoon, Detroit Metro Airport and Bismarck Airport in North Dakota confirmed to CNN the video was playing on monitors in space controlled by the TSA.
At Albany International Airport in New York, the footage was displayed on TSA-owned monitors without prior notice to the airport authority, a spokesperson said. It was taken down “in keeping with longstanding policies of not displaying political messaging or content of any kind.”
The federal government shutdown, going on for two weeks, has been filled with finger-pointing on each side. Republicans insist Democrats need to simply agree to extend current funding for another seven weeks, Democrats demanded that any funding bill contain an extension of enhanced Affordable Care Act premium subsidies. Some federal websites contain messaging calling the shutdown “Democrat-led” and blaming “The Radical Left.”
Is Noem’s video legal?
Federal employees tend to distance themselves from politically charged messaging like what is seen in Noem’s video, said Keith Jeffries, vice president of K2 Security Screening Group and a former TSA federal security director at Los Angeles International Airport.
In the video, which was released last week and first obtained by Fox News, Noem starts by discussing travel, but the message quickly becomes political.
“It is TSA’s top priority to make sure that you have the most pleasant and efficient airport experience as possible while we keep you safe,” the video begins. “However, Democrats in Congress refuse to fund the federal government, and because of this, many of our operations are impacted, and most of our TSA employees are working without pay.”
Jeffries said it’s just not something these screeners are used to seeing at work.
“You don’t talk negatively about any elected official, and of course, with the federal government, you’re not even allowed to mention what political affiliation you are,” he said.
The partisan video may open the door for other federal workers to chime in, said John Berry, a lawyer who represents government employees.
“TSA employees that aren’t working (directly) for DHS may be like, ‘Well, I can say this, my boss said it,’” he told CNN. Others who don’t agree may feel discouraged in the workplace over the messaging, especially considering they are not currently being paid.
The video also “completely runs afoul of the Hatch Act,” Berry said, noting the 1939 law which prohibits government employees from taking part in certain political activates to ensure programs are administered in a non-partisan fashion.
Barry has spent 26 years handling Hatch Act cases, defending both Republicans and Democrats.
“The Hatch Act applies to the secretary of DHS,” he said. “She filmed it, most likely, using government resources. Even though it’s being played at the airport, which is like a separate entity, it’s definitely a political activity.”
Typically, a Hatch Act violation would be brought to the Office of Special Counsel, according to Berry, which would conduct an investigation. That investigation would then be forwarded to the president for a decision on what happens next.
Berry said it is unlikely a violation would result in any consequences, given President Donald Trump would be the one to decide.
In the first Trump administration, Peter Navarro, former assistant to the president and director of the Office for Trade and Manufacturing Policy, was reported to Trump for violating the Hatch Act. Kellyanne Conway was also found to have violated the Hatch Act and was reported to the president. Nothing came out of the two cases.
Airports pick a side
TSA owns and operates some of the video monitors at airports which have been added to try to expedite the screening process by displaying reminders and sometimes include DHS messages.
Not all monitors are owned by TSA, however; some belong to the airport.
“Airports have the right to determine what side of the legal line they want to be on,” said Juliette Kayyem, national security analyst for CNN and former assistant secretary for intergovernmental affairs at DHS under the Obama administration. “There is nothing in federal law that compels them to run these videos.”
A passenger or an airline worker could file a complaint with an airport authority about the video, and some states have laws which might prohibit the videos from being shown on airport authority monitors.
“Basically, the airports are saying this is a line we don’t want to cross: ‘We have a responsibility to the American flying public to do so safely and secure, securely and what she’s doing is not that,” Kayyem said.
It’s unclear at this point whether airports will be disciplined by the federal government, including losing any federal funding, if they do not play the message.
The Department of Transportation has threatened states in the past to comply with new requirements or risk being stripped of federal funding, but threatening air travel could cause airlines to balk and risk passengers being left stranded, Kayyem said.
“The question is, what will (Noem) do in response, or will she just ignore it? Will she just move on?” Kayyem said.
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