Stripping Naked in the Middle of a TSA Checkpoint Is Not Protected By the First Amendment

Several years ago I wrote about the man who stripped naked at a TSA checkpoint.

John Brennan reportedly tested positive for explosives, stripped naked, and refused three TSA demands to get dressed.

Criminal charges in Oregon state court were thrown out because state nudity laws don’t apply to protest.

The TSA, though, decided to fine him despite the acquittal. Federal charges aren’t pre-empted by a state acquittal, and civil fines aren’t stopped by a criminal acquittal either.

After the judge threw out the charge against Brennan, 50, the TSA got one of its administrative judges to fine him $1,000 for violating a federal rule stating passengers may not “interfere with, assault, threaten, or intimidate” TSA screeners.

You may ask how stripping is an act of interference or assault or threat or intimidation. It does not matter. Once in the administrative process, the agency gets a huge degree of deference in determining violations with judges who are dependent on the agency for the very jurisdiction of their “court.”

Four years later the fine made it to the 9th Circuit Court of Appeals which decided (.pdf) on Tuesday that the man’s stripping was not protected by the First Amendment.

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.

I take it that if he announced loudly that he was stripping in protect his conduct would have been protected. Or perhaps he should have brought a sign.

To be clear, you do not have a right to be naked at the security checkpoint. But the TSA has a right to see you naked (including when they find you attractive).

    At Least Backscatter Machines are No Longer in Use at US Airports

The Appeals Court also ruled that Brennan did indeed interfere with “screening personnel in the performance of their screening duties” (49 C.F.R. § 1540.109) and that such a rule was not unconstitutionally vague.

Last month I wrote about the naked woman walking around Atlanta’s airport posing for photos. I’ve also written about the man who stripped naked to protest airline overbooking. And the naked man who fell through the ceiling at Boston’s Logan Airport. None of those did their naked thing at a TSA checkpoint.

And the nearly naked man who stormed a TSA checkpoint got tased on the buttocks, so that was way worse than a fine.

On the other hand, readers generally gave two thumbs up to the woman who checked in for her Virgin America flight in her underwear. Probably because she looked for better than most naked passengers.

(HT: Eugene Volokh)

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. The TSA screening process is unconstitutional but that’s the America we are living in now-a-days.

  2. I think stripping right at the TSA point makes pretty clear what he is protesting. Other parts of the airport I would agree people would not get it, but these judges apparently just wanted to rule against him.

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