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?

10 Responses

  1. Frist.

    I think the 9th C. reached the correct result for the wrong reason. That is all I will write about this until after y’all have had a chance to chip in.


    • If feel this would be correct: “Therefore, his conduct is not protected by the First Amendment.” Unless there is more to the story and the nature of his individual protest was clear. And should be found unless you want to give blanket permission to exhibitionists to whip off their clothes at the drop of a hat.


  2. I disagree that the speech isn’t understood. Naked dude at TSA checkpoint is clearly speech in my mind. That said I might be more sensitive to 4A protests than most.

    But you cant interfere with others.
    So be nude. To the side of the checkpoint


    • Well said, I think.

      The correct reason in my mind is exactly this: a time, place, and manner restriction is always permissible if it is reasonable, under First Amendment law. It is reasonable to keep traffic flowing at the airport.

      Pretending that this isn’t actually a protest understandable to observers limits speech by reason of imagining what observers would understand, which is BS, IMO, and in yours, NoVA.


      • Exactly.


      • I think there should be a very high degree of clarity when it comes to individual cases of nudity. Although, perhaps given the TSA element, the communication is clear, although the communication may be designed to some extent give the impression that the TSA actually ordered him to strip naked.


        • I think there should be a very high degree of clarity when it comes to individual cases of nudity.

          Obfuscating the unattractive is OK, however. Very few persons look good nude, but for them, I appreciate a high degree of clarity, too.

          Also, I should post this at the liberal site where I remain the most conservative person since you left, but I thought there would be more people who understood it here. It’s about Seattle’s increased minwage:

          The costs to low-wage workers in Seattle outweighed the benefits by a ratio of three to one, according to the study, conducted by a group of economists at the University of Washington who were commissioned by the city. The study, published as a working paper Monday by the National Bureau of Economic Research, has not yet been peer reviewed.

          On the whole, the study estimates, the average low-wage worker in the city lost $125 a month because of the hike in the minimum.


        • You have a link to that article?


  3. Kev and Scott, I clicked to find out who were the persons who liked my post because the icons were not any of ours. However, when I did that, I somehow ended up “liking” my own post. Is there a way to remove my “liking” of my own post? I am not gonna click on it again without explicit directions for fear I will be “liking” my own post twice.

    I have no idea who the other depicted “bloggers” are, btw.


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