Stripping Down at an Airport Is Not Constitutionally Protected Speech

PORTLAND, Ore. (CN) — In a far from surprising ruling, the Ninth Circuit on Tuesday refused to review a man’s complaint that stripping naked at a TSA checkpoint at Portland International Airport and refusing to put his clothes back on was constitutionally protected speech.

John Brenna sued the Department of Homeland Security and its Transportation Security  Administration after TSA officers told him he needed to undergo additional screening because he tested positive for explosives.

So “Brennan, in the middle of a TSA checkpoint, stripped naked. When TSA officers told Brennan to get dressed, he refused — three times,” the three-judge panel wrote in its unpublished ruling.

“After TSA officers had to close down the checkpoint and surround Brennan’s naked body with bins until the police arrived to remove him, the TSA fined Brennan $500 for interfering with screening personnel in the performance of their duties.”

Brennan called foul, and asked for review.

The Ninth Circuit declined: “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.”

The judges noted that Brennan forced the TSA to close down the checkpoint until police hauled him away. They rejected his contention that he did not violate a TSA regulation, and that even if he did, the regulation is too vague to withstand constitutional scrutiny.

The regulation states: “No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.”

“Interfere,” however, has a clear and common meaning that never “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.”

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