[author: Aaron Kase]
John Brennan, the man who stripped at Portland International Airport to protest TSA screeners, is shown as he testifies during his trial Wednesday, July 18, 2012, in Portland, Ore. (AP Photo/Rick Bowmer)
An Oregon man was found not guilty of indecent exposure last week on the grounds that his striptease in the Portland airport was an act of protest protected by the state constitution. John Brennan, a 49-year-old technology consultant, removed his clothes during passenger screenings in April after TSA agents pulled him aside for a pat down.
“I believe I am within my rights to be naked as a form of protest,” Brennan told security officials at the time. They disagreed and police arrested him, but a Multnomah County judge ruled that Brennan was, in fact, exercising his right to free expression that is guaranteed by Oregon state law.
During the airport encounter, Brennan had refused to walk through an x-ray scanner, and instead opted for a pat down by a TSA agent. The agent’s gloves subsequently showed traces of nitrates, which can be a sign of explosives, so an irritated Brennan simply removed all of his clothing to show security that he didn’t have a bomb hidden about his person.
Although a Portland ordinance specifically prohibits exposing genitalia in public spaces, a previous Court of Appeals ruling said the law could only apply if the public nudity was “not intended as a protected symbolic or communicative act.” TSA officer Steven Van Gordon confirmed at the hearing that Brennan’s genitalia were in fact visible.
“Because there is precedent in Oregon for protecting symbolic expression where nudity is involved, it fell within those precedents,” says Robert Corn-Revere, a First Amendment attorney in Washington, D.C.
“That’s not to say that anyone who wants to do it can just take their clothes off and walk down the street,” Corn-Revere cautions. “It has to be in context of making a political expression.”
“Before I would expect a court to extend a First Amendment protection under a state constitution, you would have to show that the nudity was part of an effort to express an idea,” he explains. “And it can be artistic expression as well. It’s something that courts would have to look at case-by-case.”
Upping the Ante
State laws guaranteeing freedom of expression as well as the First Amendment to the U.S. Constitution give citizens broad rights to protest, but that doesn’t extend into causing harm or putting other people in danger.
“Someone couldn’t hand a bank teller a note and say give me all your money and claim it was part of Occupy Wall Street,” Corn-Revere explains. “Generally the government can enforce laws designed to keep public order and safety. The question is whether or not the law is targeted, or restricts too much expression.”
The right to burn the American flag is a good example, the attorney notes: Twice the U.S. Supreme Court has struck down laws that specifically prohibit flag burning, but that doesn’t mean protesters can ignore public safety. “The court made it clear that if there was a law against having outdoor fires, if someone burned a flag in protest the First Amendment wouldn’t necessarily protect them against a law about making an open fire,” he says.
Clearly, the judge in Oregon found that Brennan’s right to protest outweighed any danger his exposed penis might have caused to his fellow travelers.
Brennan, who says he flies about once a month, noted that TSA agents are constantly examining naked people anyway through scanning machines, so he just decided to give them a better look. “I was aware of the irony of taking off my clothes to protect my privacy,” he said at the hearing. “I know my rights. You [the government] have machines that can see us naked. I am upping the ante.”