For 50 minutes Thursday, a group of judges considered the case of a man who stripped naked outside the federal courthouse in downtown Portland, played violin beside the engraving of a Thomas Jefferson quote and then sat for hours on the ground before his arrest.

A three-judge panel of the 9th U.S. Circuit Court of Appeal peppered lawyers for Matthew Mglej and the city of Portland with questions about what Oregon law allows when it comes to protesting nude and exactly what message Mglej was trying to send.

Mglej's lawyer Matthew Gordon argued that Portland police wrongfully arrested his client on May 23, 2014, because the city's indecent exposure ordinance protects nudity intended as a symbolic "communicative act'' or protest. He cited a 1985 Oregon Court of Appeals case in support.

Mglej was charged with violating the city ordinance that forbids people from exposing their genitalia in public and in the presence of the opposite sex. State prosecutors later dismissed the charges. Mglej then took the city to federal court, but a trial judge dismissed Mglej's claims against the city, leading to his appeal.

"Is it really your position if you're intending to communicate something, you may stand naked in the public square in Portland, even as children walk by ?'' Circuit Judge Andrew D. Hurwitz asked.

He continued to press: "Every nude protest in the world is now OK in Oregon'' under the state Constitution?

And what exactly was Mglej trying to communicate, another judge asked. If the officers didn't understand his message, did that make a difference?

What Mglej did wasn't a "mindless act'' but a "considered, deliberate thoughtful protest,'' his lawyer said. The city ordinance protects public nudity intended as a protest, he added.

"He removed his suit and laid it out in a symbolic straw man metaphor to convey a message of transparency in government,'' Gordon noted. "He brought his violin with him as a symbol of American patriotism.''

Circuit Judge N. Ray Smith interrupted.

"Your client didn't communicate a message at all. What message did he communicate?'' Smith asked.

"He communicated a message about transparency,'' Gordon repeated.

"Just because he took off his clothes?'' Smith asked.

Attorney Julia Glick, representing the city of Portland, urged the judges to view the video of Mglej's actions to understand the full context.

"In some cases, sending the video is not a good idea,'' quipped Hurwitz, drawing chuckles from the public gallery in the normally staid Pioneer Courthouse courtroom in downtown Portland.

Glick argued that the Portland officers had no idea what Mglej was protesting because he refused to tell them. They had probable cause to arrest Mglej for violating the city ordinance against indecent exposure, and if even if they didn't, should be granted immunity because their actions were reasonable after having consulted a deputy city attorney, she said.

"A person's reason for engaging in punishable conduct does not transform that conduct into allowed speech,'' Glick said.

Judge Raymond C. Fisher veered from his colleagues, saying it didn't matter that Mglej's message wasn't readily apparent. The court didn't need to parse, nor should it attempt to interpret what Mglej's exact message was, he said.

"It was clear he was communicating in some way,'' Fisher said. "The fact that the audience couldn't figure out exactly what he was doing doesn't take it from the realm of a communicative act.''

Hurwitz acknowledged, "Instead of trying to engage in public indecency, isn't it clear he's trying to say something. ... God knows what?''

The message of the protest must be embodied in the display of nudity, the city attorney argued.

"Is it against the law in the city of Portland and the state of Oregon to engage in a nude protest on the street?'' Hurwitz pressed.

"Yes and no, it would depend on the message of what the nudity is,'' Glick responded.

Hurwitz continued, asking if Mglej's nudity would have been legal if he had said he was protesting children starving in Africa.

"Let's assume he made it clear – that the message he intended to give out was a worthy one. Would they then have probable cause to arrest him?'' Hurwitz asked.

At the scene, Mglej told officers he was protesting and picked up his iPad, showing police the Oregon Court of Appeals case, City of Portland v. Gatewood, indicating case law allows for public nudity intended as a symbolic act, Gordon told the court.

"I can't understand Gatewood,'' Hurwitz said. "Should the police officers understand?''

The appeals panel will now take the appeal under advisement and issue a ruling later.

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian