First Amendment as a Successful Defense and an Unsuccessful One

The 9th Circuit’s description of the matter:

When Transportation Security Administration (TSA) officers at Portland International Airport told John Brennan that he needed to undergo additional security screening because he tested positive for explosives, Brennan, in the middle of a TSA checkpoint, stripped naked. When TSA officers told Brennan to get dressed, he refused — three times. After TSA officers had to close down the checkpoint and surround Brennan’s naked body with bins until the police arrived to remove him, the TSA fined Brennan $500 for interfering with screening personnel in the performance of their duties. See 49 C.F.R. § 1540.109 (“No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.”).

Brennan’s core contention is that stripping naked in the middle of a TSA checkpoint is expressive conduct protected by the First Amendment. But Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). Therefore, his conduct is not protected by the First Amendment.

Meanwhile, OR prosecuted Brennan for public nudity. Acquitted by the Judge, as follows, according to The Oregonian:

The judge sided with the defense, which cited a 1985 Oregon Court of Appeals ruling stating that nudity laws don’t apply in cases of protest.

“It is the speech itself that the state is seeking to punish, and that it cannot do,” Circuit Judge David Rees said.

Are both results correct? Neither? One, but not the other?

%d bloggers like this: