The Naked American vs. TSA "Symbolic Nudity" Is Okay in Oregon—Now Can Portland's TSA Protester Win Against the Feds?

"I WAS AWARE of the irony of taking off my clothes to protect my privacy," says 50-year-old Portlander John Brennan, who is now one of the most famous strippers in the world.

After being cleared of indecent exposure charges last week for an anti-airport-security protest that gained worldwide attention, Brennan is still facing a potential $11,000 fine from the Transportation Security Administration (TSA). It's uncertain whether the federal powers-that-be will agree with Oregon law that nudity is a protected form of free speech.

On Wednesday, July 18, Brennan stood trial in Multnomah County for pulling off a protest we've all joked about doing. After Brennan opted out of the full-body scanners at Portland International Airport in April, a TSA patdown came back positive for nitrates, and an officer told Brennan he'd need extra screening.

"I guess I have to show you I don't have anything," said Brennan, whipping off all his clothes. As surrounding passengers alternately shielded their eyes or started snapping photos, TSA shut down two security lanes and called the Port of Portland Police, who had Brennan arrested.

"I know my rights. You have machines that can see us naked," Brennan told the court last week. "I'm upping the ante." Judge David Rees agreed, ruling that Brennan's "symbolic nudity" was a legitimate protest protected by the state constitution.

But Oregon courts have an unusually solid history of supporting the right to nudity as free speech. Brennan's next hurdle is dealing with a civil TSA penalty for "interfering with security." The TSA is allowed to issue steep fines to people for security violations—trying to slip a loaded gun into a carry-on, for example, could cost someone $3,000 to $7,500. In his case, Brennan is going to argue that the TSA overreacted to his simple strip-down by shutting down security lanes, causing the security interference themselves.

Specific protections for nudity are not built into the Oregon Constitution or federal law ("freedom to remove your pants" is not listed alongside "freedom of assembly"), so the interpretation of what constitutes free speech is determined on a case-by-case basis. If a judge rules that the TSA can't fine Brennan for his protest, it could set national precedent for establishing nudity as free speech.

"Conduct can be speech," says Brennan's pro-bono lawyer Bob Callahan. "A fine is a form of punishment, and if it's levied against protected speech it can't stand. The real question is whether the federal constitution will protect Mr. Brennan's First Amendment rights against punishment."