As the TSA’s “screening” has become increasing invasive — searches, x-ray and microwave “whole body imaging”, genital groping, etc. — more and more people have suggested that, since we are required to submit to a virtual strip-search and/or groping of our genitals in order to obtain TSA permission to travel, we might as well show up at the TSA checkpoint already naked.

But what happens if a would-be traveler takes off their clothes at the checkpoint, so the TSA staff can see a little more clearly whether they are carrying any weapons or explosives?

Later this month John Brennan goes on trial before a county judge in Portland, Oregon, charged with violating Portland City Code 14A.40.030 (“indecent exposure”) for doing just that. Mr. Brennan has also been threatened by the TSA with the possibility of an administrative fine of up to $10,000 for violating Federal regulations (49 CFR §1540.109) by “interfering” with TSA screeners in the performance of their duties.

As we understand it from Mr. Brennan’s blog and other sources, here’s what happened:

On April 17, 2012, Mr. Brennan showed up — clothed — at Portland International Airport (PDX) for a flight to San Jose, CA.  He went through a metal detector without setting off any alarms. Since he declined to “consent” to a virtual strip-search, TSA staff also gave him an “enhanced pat-down” including the usual groping through his clothes, still finding no sign of anything contraband, dangerous, or threatening. But the TSA continued to detain Mr. Brennan at the checkpoint.

The TSA didn’t give Mr. Brennan any clear explanation of why he was still being detained, or what would happen next, but it seemed like their super-duper detectors had indicated that a chemical swab of his clothing or belongings had shown some indication of possible explosives.

At this point Mr. Brennan did the only thing he could have done to provide additional evidence to the checkpoint staff that he wasn’t hiding any weapons or explosives under his clothes, and to calmly and quietly protest the TSA’s treatment of him in the manner least likely to obstruct any further, more intrusive search they might want to conduct of his person or clothing: He took off his clothes. All of them. And when the TSA still wouldn’t let him go, but instead called the local police and told him to put his clothes back on, he peacefully declined to do so. At that point, he was arrested by Port of Portland police.

Mr. Brennan was originally charged with a misdemeanor violation of state law, ORS 163.465 (“public indecency”), but that charge — which would have entitled him to a jury trial, and would have required the prosecution to prove “the intent of arousing … sexual desire” — was dropped the next day.

That leaves the Portland “indecent exposure” ordinance and the TSA’s regulations against interfering with “screeners” in the performance of their duties.

The Portland city ordinance Mr. Brennan is still charged with violating purports to make it “unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex.”

Portland’s ordinance is rarely enforced in the absence of specifically sexual acts or intent, and has been found unconstitutional as applied to nudity as a form of expressive conduct. That ruling came in a case of naked bicycling in which the court cited the Portland component of the annual World Naked Bike Ride — in which Mr. Brennan and thousands of others have participated unmolested —  as evidence of the recognition of nudity as a form of symbolic expression and political protest.

Portland police offically recommend only that naked bicyclists wear helmets and shoes, for their own safety. The prosecution of of Mr. Brennan appears likely to be an instance of unconstitutionally discriminatory prosecution, with Mr. Brennan having been selected for prosecution on the basis of his symbolic (and highly effective) expression of his critical opinion of the TSA’s actions. We expect that more evidence as to the motives of the police in singling out Mr. Brennan for arrest, and the role of the TSA staff in that decision, will emerge in pre-trial discovery and at trial.

Independently of any state or local laws, and under somewhat dubious Federal statutory authority, the TSA claims the authority to impose civil penalties against travelers and would-be travelers who violate its regulations. For non-violent interference with “screening” (searching and groping and perhaps interrogation) personnel, the TSA’s guidelines provide for a civil penalty of $500-$1,500 per violation.

We’ve been unable to find any report on how often the TSA imposes such penalties, but they appear to be infrequent, especially for non-violent acts of political expression. Security researcher Christopher Soghoian got a letter threatening civil penalties for his boarding pass generator, but the TSA and FBI backed off after discussions with his lawyer. As with the city of Portland’s decision to press charges, any decision by the TSA to follow through on its threat to penalize Mr. Brennan for his protest would likely be vulnerable to challenge as an unconstitutionally discriminatory act of selective prosecution based on Mr. Brennan’s exercise of rights protected by the First Amendment.

One reason the TSA has avoided pursuing civil penalties against political protesters is that they can only be imposed through a quasi-judicial process that provides many of the rights of a trial (although not a jury) and the result of which can be appealed to the Federal courts. The TSA has consistently resisted judicial review of its actions, and has avoided any proceeding that would create a jurisdictional and procedural path to such a review of its orders.

As a factual matter, it’s hard to see how the TSA would claim that Mr. Brennan’s nudity interfered with screening personnel in the performance of their duties. Given that they are required to look at as-though-naked body scans, and reach under or inside travelers’ clothing, or remove as much of it as necessary, to “resolve” their suspicions, how would nudity interfere with their ability to search for weapons, explosives, and other hazardous items — the sole lawful purposes of their searches?

John Brennan needs our support at his trial, with the TSA, and with his legal expenses.

John Brennan’s “indecent exposure” trial is currently scheduled for 9 a.am., July 18, 2012, before Judge Hodson in Room 410 of the Multnomah County Courthouse (“Old County Courthouse”), 1021 SW Fourth Avenue, Portland, OR 97204-1123. Check the Facebook event page for updates to the date, time, and courtroom for the trial, or the docket listings that day for the correct courtroom for case #12-04-44581.

You can donate by Paypal to “john@frozenpoodle.com” (please include a note that your contribution is for “John Brennan’s Legal Defense Fund”) or send checks to the John Brennan Defense Fund, 822 NE Hancock St., Portland, OR 97212. (Please make checks payable to “John Brennan Defense Fund”.) Any funds remaining at the conclusion of the case (unlikely — Phil Mocek was left with a $34,000 debt after his acquittal on bogus charges brought at the instigation of the TSA) will be donated to the ACLU.

More information:

• NakedAmericanHero.com
• TSA, Free Speech & Me (John Brennan’s blog)
• John Brennan’s indecent exposure trial (Facebook event)
• Donate to John Brennan’s legal defense fund