Last week three judges of the 9th Circuit Court of Appeals upheld the TSA’s administrative decision to fine “Naked American Hero” John Brennan $500 for taking off all his clothes to protest TSA’s practices and to show that he wasn’t hiding any explosives under his clothes despite a false-positive result from a TSA swab test for residue of explosives.
At the same time, the TSA revealed that Mr. Brennan was not alone: At least two other air travelers have been fined in recent years for taking off all their clothes in response to TSA demands that they submit to “pat-down” searches for weapons and explosives.
The judges on the 9th Circuit panel claimed not to believe that viewers would understand Mr. Brennan’s symbolic speech — notwithstanding the public reaction that made clear that Mr. Brennan’s expressive intent and message were perfectly clear to those who heard about what he had done. According to thre court’s “unbpublished” (it;s actually public, but can’t be cited as precednt in future cases) opinion:
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. Therefore, his conduct is not protected by the First Amendment.
The TSA fine was based on the claim that Mr. Brennan “interfered” with TSA screening because the TSA stopped screening him in order to stare at, or perhaps in order to avert their eyes from, Mr. Brennan’s naked body, or diverted their attention to trying to shield other travelers from sight of him.
But the TSA never claimed that Mr. Brennan’s nakedness violated any Federal law or regulation, and the local courts dismissed the criminal charges brought against him under state and municipal law on the grounds that his nakedness was, in the circumstances, protected by Oregon law. Mr. Brennan could legally have shown up at the TSA checkpoint already naked, and the duty of the TSA would have been to allow him to proceed unless “screening” showed him to be a threat to aviation security.
TSA staff and contractors are often distracted from their duties by the appearance of the travelers they are inspecting and groping. But that’s not a lawful basis for sanctions against those travelers. Mr. Brennan is not responsible for the decision of the TSA staff to stop doing their job because of what he looked like or how he was (legally) dressed or undressed.
The court found that the TSA rule against “interfence” isn’t unconstitutionally vague, even as applied to Mr. Brennan’s entirely peaceful and nonviolent conduct:
We have long recognized that “‘interfere’ has such a clear, specific and well-known meaning as not to require more than the use of the word . . . in a criminal statute.” In other words, the word has a “settled legal meaning.” And courts have often defined and applied it, but never in a way that 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.
The court’s error, of course, is the mistaken claim that it was Mr. Brennan’s actions, rather than the choice of the TSA to abandon their duties and refuse either to screen a naked man or allow him to proceed once they could see he had no concealed weapons, that “led to” the closure of the checkpoint.
The 9th Circuit was the first (and only) court to review the Constitutionality of the TSA’s administrative fine of Mr. Brennan. TSA administrative decision-makers are forbidden from considering whether the regulations, policies, and practices they enforce are legal or Constitutional.
Brennan v. TSA and DHS was fully briefed before the 9th Circuit two years ago. Earlier this year, after a long silence, the court scheduled oral argument, which was to have been held earlier this month in Portland. Then, on its own initiative and without explanation, the court cancelled the scheduled oral argument, and decided the case a few days later on the written arguments. Our best guess is that one of the three judges on the panel had questions about a draft opinion, but was persuaded or decide to withdraw them.
Mr. Brennan discussed his original protest and his thoughts on the 9th Circuit decision in a lengthy interview with Portland TV station KGW. Some excerpts:
I have confirmed for myself that nude protest is an effective and attention-getting way of bringing light to a cause….
I don’t believe that standing at a TSA checkpoint disrobed is interference. I believe that the accusation of me carrying explosives is a fairly serious accusation and that I could take action to let them know I wasn’t carrying a bomb. If they were uncomfortable with my nudity, that was one issue, and that doesn’t have to do with their job….
In some ways, the protest chose me. It was the testing positive for explosives and, I said, this just isn’t right. And I’m in the right place, I’m right in front of the people who are accusing me, and I have an ability to do something in Oregon that in many other states, people couldn’t do this in. I have had friends tell me that they would have chosen different battles. This is the battle I ended up in and I’m glad I did it. I would do it again. And I hope that my protest has inspired other people to take action against injustices at all levels…
Almost everyone has a TSA story. TSA is not a loved organization. I have a lot of support across political spectrums. I have Libertarians who really support my cause and liberals who support nudity, who support free speech, are very much supporting. Most of my legal costs were covered by crowdsourcing. I’ve had checks as small as $5, up to $7,500, from strangers coming forward to support standing up against the government. …
What I hope people take away from this is a battle is worth fighting even if it doesn’t have the full outcome that you’d like. I was able to raise issues about protest, about the TSA in general. I garnered a lot of support….
Black Lives Matter has really been in the news lately. I want to say my protest was an example of me using my white privilege, my male white privilege, to take on a force greater than myself. And I encourage men out there, and white people out there, to use some of your privilege. Because I can’t imagine what would have happened if a person of color had done what I did. I don’t think it would have had as good of an outcome. As a person who acknowledges his privileges, I was able to take a stand and be heard. I encourage other people to stand up for their rights.
At almost the same time that the 9th Circuit was making its decision in Mr. Brennan’s case, the TSA — in belated and partial fulfillment of its obligations under the Freedom of Information Act — posted redacted versions of several years of its administrative decisions to fine travelers for alleged violations of TSA regulations.
One of these newly-disclosed compilations of TSA documents includes records of two other previously-unpublicized incidents in which the TSA fined travelers who responded to demands for more intrusive “screening” by taking off all their clothes.
In the first of those incidents, on March 10, 2012, an unnamed passenger at San Francisco International Airport was being searched (“screened”) by rent-a-cops employed by TSA contractor Covenant Aviation Security. According to the TSA’s Notice and Order assessing a civil penalty:
[P]rior to submitting to the screening process, you notified a CAS [Covenant Aviation Security] Transportation Security Officer (TSO) that you wanted to opt out of the Advanced Imaging Technology (AIT) screening process. The CAS TSO informed you that you would receive a pat-down since you elected to opt out of the AIT screening process. The CAS TSO further informed you that the pat-down could be conducted in a private screening room.
You agreed to the pat-down and requested that the pat-down be conducted in a private screening room. A CAS TSO and a CAS Lead TSO (LTSO) escorted you into the private screening room.
Immediately upon entering the private screening room you removed your pants, your shirt and your undergarments, exposing your genitalia…. You then turned your back to the CAS TSO and CAS LTSO. You leaned forward, spread your buttocks and stated “there is nothing there.”
From this account, it appears that the unnamed traveler followed standard prison-guard and prisoner protocol for a strip search, in exactly the manner that guards who demand that prisoners submit to such a search expect and train them to behave without hesitation or argument. He did nothing to interfere with the TSA contractors, but the TSA assessed a $900 fine against him for alleged “interference”.
The other newly-disclosed incident involved a passenger ticketed to board US Airways flight 1824 at George Bush Houston Intercontinental Airport (IAH) on June 18, 2013. According to the TSA’s order assessing a civil penalty of $500:
You opted out of screening through the Automated Target Recognition (ATR) machine.
As a result, a Transportation Security Officer (TSO) advised you that you would have to undergo a pat-down….
When a Lead TSO attempted to conduct the pat-down, you removed your shirt.
The Lead TSO advised you that you did not have to remove your shirt.
You stated, “I know,” and then removed your shorts and underwear.
These scattered and apparently spontaneous and independent actions further refute the 9th Circuit’s claim that anyone of ordinary intelligence would intuit that taking off one’s clothes is not a permissible way to “clear” an explosives-test alarm or show that one isn’t carrying a bomb, that these actions would be deemed to constitute legally punishable “inteference” with the TSA or its contractors, or that their political message wouldn’t be understood by the public.
We congratulate “Naked American Hero” John Brennan and these two other victims of TSA fines, who we invite to come forward to take credit for their actions or to tell their stories anonymously, as they choose.