Appeals Court: Your Naked Protest At Airport Security Is Not Protected By First Amendment

Five years ago, when we told you about an Oregon man protesting new airport security measures by stripping down to nothing at a TSA checkpoint, we had no idea it would eventually blossom into a years-long legal battle over whether or not one has a First Amendment right to get naked at the airport, but this week a federal appeals court disagreed with a local judge, saying that the man’s protest was not a form of constitutionally protected free speech.

Let’s flash back to the glory days of 2012, when the nation was still reeling from the split up of Katy Perry and Russell Brand, and the Transportation Security Administration was rolling out controversial new screening procedures at airports, including then-new body scanners that can see through your clothing.

When John arrived at Portland International Airport for one of his frequent business trips to California, he decided he’d rather not go through the scanner. Instead, he opted for the alternate screening process of stepping through a metal detector and then undergoing an “enhanced” pat-down. This screening also involved swabbing John’s fingers, where the TSA machine claimed to have found something of interest. That was apparently the last straw for John, who launched into an impromptu, in-the-buff protest.

“By disrobing, [John] presented himself for the resolution screening entirely bare skinned,” his lawyers explained in a 2015 court filing [PDF]. There was no need for the TSO to pat down bare skin, since it immediately revealed itself.”

In response to the disrobing, TSA shut down not just his security line, but also a neighboring one. John argued this was unnecessary. Agents could have taken him to a private office for further screening, but instead they chose to close the lanes and surround John with stacks of plastic trays to hide his naked body from public view.

“This action taken by the TSA in response to Petitioner’s disrobing was not required by any identified TSA policy,” read the 2015 brief.

Police arrested John and charged him in county court with indecent exposure. In 2015, a Multnomah County, OR, judge acquitted him, saying his protest — however naked — was still a protest and thus protected by the First Amendment.

In that judge’s eyes, public nudity violates the law only when people are engaged in sexual intercourse or if they got undressed “with the intent of arousing the sexual desire” of others.

Though John was off the hook on the local charges, the TSA said he nevertheless violated a federal regulation that prohibits interference with airport screening personnel and issued a $1,000 fine that was later reduced to $500.

Arguing that the TSA ignored his constitutional right to public protest, John petitioned the Ninth Circuit Court of Appeals.

“Even if [John] could be said to have ‘interfered,’ his conduct, in protesting the intrusive search procedures… by removing his clothing to facilitate such search, was activity protected under the First Amendment to the United States Constitution,” he argued, “and was therefore not the kind of interference prohibited by the regulation.”

The Ninth Circuit never heard oral arguments in this matter, but decided this week to issue a ruling [PDF] that shoots down John’s claims of First Amendment protection.

The three-judge panel noted that John’s core argument is that “stripping naked in the middle of a TSA checkpoint is expressive conduct protected by the First Amendment,” but concluded that John “fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative.”

John had also claimed that the language of the TSA no-interference rule was too vague, and that — when you really think about it — one could also argue that he was actually helping the TSA by getting naked.

“Since [John’s] action had the effect of dispensing with the next step of the process, a common understanding of the term ‘interfere with’ would not have classified [his] conduct of removing his clothes and leaving them off as interference with anyone’s screening duties,” he explained. “Rather, a reasonable understanding of the circumstance might lead one to believe that [John] was actually facilitating the screening process.”

The court was not won over by this argument, pointing out that the legal system has repeatedly and clearly defined what it means to “interfere,” and that none of the currently understood meanings of the term “would lead a person of ordinary intelligence to think that he or she could strip naked at a TSA checkpoint and refuse to get dressed, leading to the closure of the checkpoint.”

[h/t Courthouse News]

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