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Comment by jevinskie | Hacker News Reader

Does this ruling imply some sort of "right to travel"?

From the article it seems like the judge has said that the right to freedom includes the ability to travel out of the country or across country. It's just not reasonable to require some segment of the population (500-20,000 people) to take a boat to go to Europe, with no trial or ability to appeal. Movement is restricted.

It doesn't seem like a right on it's own, so much as included in the existing right to "liberty". My 2 cents.

Yes. In the ruling, the Court "has concluded Plaintiffs have a constitutionally-protected liberty interest in the right to travel internationally by air".

However, it goes further as they found that as per Mathews v. Eldridge, 424 U.S. 319, 333 (1979) the plaintiffs constitutional right to due process has been violated because:

1. not only do they have a right to travel internationally, being placed on the no-fly list stigmatises them as the government discloses the list to other parties (such as ship captains) and additionally deprives them of their liberty.

2. Notice is insufficient as there is inadequate information given to those on the no-fly list, because under government policy they neither confirm nor deny they are on the list. This leads to a catch-22 situation where you cannot appeal an erroneous decision as you cannot tell what that decision was.

Interestingly, the court said they couldn't determine if there were issues with judicial review.

There is a third test, which is to weight the government's interest against issues with disclosure, but this couldn't be determined by the Court.

The ruling is quite readable, btw. It can be found here:

https://www.aclu.org/sites/default/files/assets/latif_v_hold...

This looks accurate. In this case, it looks like the court relied both on precedent, the Constitution, and finding a new right. For purposes of appeal, my guess is the decision is upheld, while declining to accept the first justification of the ruling. The second point the decision relies upon is a pretty strong one, in my opinion.

http://en.wikipedia.org/wiki/Freedom_of_movement_under_Unite...

It's not really implied by this. It's one of the rights guaranteed by the constitution.

>> It's one of the rights guaranteed by the constitution.

Again, not trying to be pedantic, but this is another major point of contention in Constitutional law - how broad of a scope do each of the Constitutional named rights have? The 9th Amendment implies that it is extremely broad, as it explicitly reserves non-enumerated rights as falling under the Constitution.

DISCLAIMER: just to head things off, I bring up Roe v. Wade not because of the topic of the case, but because the general opinion on the ruling's use of the 9th Amendment is pretty consistent (and there are numerous subsequent cases that deal almost solely with this). There are many who agree with the outcome but have major reservations with the potential repercussions of the legal reasoning.

However, you can just look at the general consensus on Roe v. Wade to see that it's far from universally accepted that the 9th Amendment is that broad (that the crux of the opinion is very flawed, relying on a very strange and far reaching right of privacy derived from the 14th Amendment and 9th Amendment - neither of which mention privacy. To clarify - on both sides of the Roe v. Wade debate, most will admit the ruling was flawed, and when relying on it as precedent, nearly all judges will also refer to subsequent cases that address the problems with that ruling). So, the Constitution does not guarantee a right to travel (and the way this ruling is phrased suggests that an appeal would bring this as a concern, and in upholding the ruling, a higher court would almost certainly clarify this). A more likely argument (in terms of its strength in Constitutional law) is one that protects a right to travel as a part of the 1st Amendment right to free speech, expression, and assembly (so a negative right granting freedom from unlawful interference in travel by the government).

This case has nothing to do with freedom of speech, it's to do with the Fifth Amendment in the Bill of Rights. And it's not that the plaintiffs were deprived of liberty, it was that they were deprived of liberty without due process of law.

To this the Court has found that there was no due process, therefore the no-fly list - as it stands now - violates the United States Constitution.

That's incorrect if the linked article is correctly quoting the binding portion of the decision. If the decision relies on a right to travel, it's almost certainly going to rely on the 1st Amendment. If what I suspect happened, which is the article quoted dicta addressing issues raised, but not necessary to the ruling, then you are correct, it's entirely a due process issue. The former is highly vulnerable to appeal, the second, drastically less so.

The ruling does seem to imply that, however, on appeal, that will almost certainly be clarified. No judge would actually argue for a right to travel so broadly defined that it would essentially remove all regulatory power over who can and cannot fly. The ruling will likely be clarified for precedent to mean that the right to due process includes a right to quickly and effectively contest designations by government agencies in the absence of formal charges of violating a law.

The right to travel, in the broad sense of "you have the right to move wherever you want to move so long as no laws are violated," is likely covered by an umbrella of the 1st Amendment right to free speech and expression, as well as the 9th Amendment, as a negative right: you are free from being prevented from travel by means not permissible by law or Constitutionally.

There's nothing implied. The Court flat out says that denial of international air travel is a deprivation of liberty.

Does anyone have a link to the actual decision? Upon rereading, the article certainly makes it seem as though the crux of the ruling was around a denial of international air travel is a deprivation of liberty, but were I the appealing attorney, that would be fantastic news. That's a major change in the permissiveness of the word liberty, and would open up infinite slippery slope arguments. I'd bet on that logic failing on appeal.

However, if the decision relies on other grounds (either solely or in addition to), then I doubt it is overturned. While the Reuters article presents this as legally binding, if the quotes occurred in dicta (discussion of the facts and implications of the case that are not legally binding, as they are not grounded in case or black letter law), then it's not binding, and the ruling can be upheld without addressing the redefinition of liberty.

Find it here. Deprivation of liberty is not the whole issue, it was a problem with lack of due process, of which deprivation of liberty is but one part.

https://www.aclu.org/sites/default/files/assets/latif_v_hold...

I summarised the case in this comment:

https://news.ycombinator.com/item?id=7940334

No judge would actually argue for a right to travel so broadly defined that it would essentially remove all regulatory power over who can and cannot fly.

Why not?

Because judges are hesitant to make such sweeping redefinitions of established law. Not that it doesn't happen, or taking a position on whether it's optimal, but it's incredibly uncommon, and generally frowned upon by the judicial and legal community. Even the most ardent judicial activists tend to favor change by increment.

I always assumed the right was implicit. (Potentially ignorant US citizen here)

Well it gets muddy when it isn't just walking around. For instance, most states require that you consent to a breathalyzer test or your license is revoked. Somehow the Fourth didn't apply in those cases.

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