Remember John Gilmore? He's the co-founder of the Electronic Frontier Foundation and tech millionaire who sued the federal government for its secret law requiring airline passengers to present government-issued photo identification. The Ninth Circuit Court of Appeals in San Francisco released its opinion in the case.

Man, if anyone accused the Ninth Circuit Court of being a liberal, activist bastion, that person needs to be slapped a lot. The Ninth Circuit Court upheld the government's secret law.

In its unanimous opinion in Gilmore v. Gonzales, 04-15736 (formerly Gilmore v. Ashcroft), a three-judge panel agreed that the secret law was legal. After addressing prosaic issues of jurisdiction (the Ninth Circuit ruled that it did have jurisdiction to hear the case), the court next addressed issues of standing. Gilmore objected not only to the secret identification law, but also to requiring extensive searches in order to board the plane. He also suggested that, in the abstract, his ability to travel was hampered not only by airlines, but also train and bus companies, who also require identification. The Justice Department argued that since Gilmore refused to submit to a search, and did not actually attempt to travel by bus or train, he did not suffer "injury in fact" in those instances. The Ninth Circuit agreed, saying that Gilmore had standing to challenge only the identification requirement and only as it pertains to airlines.

The Ninth Circuit suggested that it didn't matter whether or not the text of the law was secret; he was still informed of its existence:

He alleged that several airline personnel asked him for identification and informed him of the identification policy. They told him that in order to board the aircraft, he must either present identification or be subject to a “selectee" search. He also saw a sign in front of United Airlines’ ticketing counter that read “PASSENGERS MUST PRESENT IDENTIFICATION UPON INITIAL CHECK-IN.” Although Gilmore was not given the text of the identification policy due to the Security Directive’s classification as SSI, he was nonetheless accorded adequate notice given that he was informed of the policy and how to comply.

The court cites a 2000 case called Forbes v. Napolitano as support for this opinion. In that case, the Ninth Circuit ruled that people do not need to be able to read the actual statute; rather, they need only "be given a reasonable opportunity to discern whether their conduct is proscribed so they can choose whether or not to comply with the law." Thus, the combination of verbal statements and signs, in the opinion of the court, is "reasonable opportunity" to indicate that he must present identification. Never mind the fact that the airline employees or signs could be lying about the statute; also, the signs do not indicate that whether or not it is a government statute or an airline policy that is being enforced. The Ninth Circuit's opinion essentially says that individuals do not have a right to read the text of the law; they need only be given the assurance that the law exists and be offered enough information about the unlawful activities so that they can decide whether or not to comply with the law. "Trust us, the law says X." Trust you? Trust you? As a citizen, it is my right to read the law in its entirety! Not to read a synopsis of the law, or the Readers Digest condensed version, or even to rely on someone's assurance that the law says X. The Ninth Circuit has made a big mistake, here.

The court next tossed out Gilmore's assertion that he has a "constitutional right to travel" and the Justice Department's identification requirement, by infringing upon his ability to travel by commercial airline, infringes upon his right to travel. This was the correct thing to do, as "the Constitution does not guarantee the right to travel by any particular form of transportation." The court is also correct that "it does not follow that Defendants violated his right to travel, given that other forms of travel remain possible." That was a silly assertion for Gilmore to make in the first place.

While the court denies the existence of a "constitutional right to travel" it acknowledges the existence of a "right to interstate travel" as established in the 1999 Ninth Circuit case Miller v. Reed. There, the court ruled that denying a person a drivers license -- thus denying a person one form of interstate travel -- does not deny a person all forms of interstate travel.

The court was also correct in criticizing Gilmore's assertion that a "harsh penalty" is imposed upon people who do not present identification. There is no stautory penalty; rather, the person is simply not permitted to board the airplane. The person is free to leave the airport, and the person is not arrested. The inability to board an airplane is not a "harsh penalty."

What is most detrimental here is the court's assertion that secret laws are okay and requiring identification as a prerequisite for travel is okay. The court also missed the boat on the larger issue of requiring a government-issued identification -- which costs money -- in order to travel. This does not comport with the Fourteenth Amendment's "equal protection" clause, as it penalizes those who cannot afford government-issued IDs. If Gilmore were smarter, he would have gone to a bus station and a train station to demonstrate that several modes of interstate transportation are impeded by a lack of identification, thus severely impeding a person's "right to interstate travel." Also, IDs are required for many government services outside of travel. Due process is also denied here, as U.S. citizens should not be required to pay for identification that they need to access vital services. In other countries, IDs are free because they are so necessary.

Thus, it appears that the government may enforce laws that citizens are not allowed to the text of or even the existence of, as long as adequate display is made of some of the parts of the law. A Readers Digest condensed version of the law is okay.

This is not okay. It is not good for a democracy to permit the enforcement of laws that citizens are not allowed to read. "Don't worry, we'll tell you what the law says." No, I am going to worry. I don't want a government that isn't interested in protecting my rights telling me what the law is without allowing me see it! It's a hearkening back to the days of the Catholic Church, when the Bible wasn't available to the masses, and people were expected to trust the priest's interpretation of the Bible. Once the printing press allowed people to read it for themselves, guess what? There was a lot of disagreement about the interpretation. They were dealing with heaven and hell; now, we're only dealing with earthly law, so we should have no less a standard.