Decent Exposure: Guy Who Stripped Naked to Protest TSA Is Found Not Guilty

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As we saw in April, John Brennan was charged with indecent exposure after he took all his clothes off to protest being hassled by the TSA in Portland. See "TSA: Wants to See You Naked, Complains When You Get That Way," Lowering the Bar (Apr. 18, 2012). After a half-day trial in Multnomah County Courthouse yesterday, Brennan was found not guilty by a judge who found that his bareness was "symbolic nudity" that is protected free speech under Oregon law.

The prosecution, which clearly had nothing better to do, argued that Brennan only retroactively claimed his act was a protest, although so far as I can tell the prosecutor didn't offer any evidence that Brennan frequently gets naked in public for some other reason. (Potentially admissible as "prior bad acts" if sufficiently similar, for those of you who care and/or are studying for the bar.)

Sarah Mirk of the Portland Mercury was there yesterday to blog about the trial. She writes that the first witness was the TSA employee who patted Brennan down after he opted out of the body scanner (which you have the right to do under TSA's own rules). Brennan did not protest the pat-down, but apparently got fed up when the TSA guy's gloves allegedly tested positive for nitrates and he said additional screening would be required. "I guess I have to show you that I don't have anything [explosive]," Brennan said, and took off all his clothes.

"Were you able to see his genitalia?" the prosecutor asked, presumably just for the record.

"Yes," said the witness, presumably still aglow with the memory of what must have been the culmination of his otherwise pointless career.

TSA called airport police (they aren't actually "officers" themselves) and stacked plastic bins around Brennan in an effort to "shield his nudity," although most likely they were trying to prevent other travelers from getting good pictures of the incident. Brennan told the police that he was asserting his right to protest nakedly under Oregon law, which is quite supportive of nudity, as it turns out, and that was his defense yesterday.

Mirk said the prosecution "seem[ed] to be painting the picture that Brennan wasn't legitimately protesting because he … wasn't wearing any sort of written message—like painting his chest with some words of protest—admonishing the TSA." But that would mean you could never naked-protest on the spur of the moment and would have to go around prepainted just in case the government messed with you. But Brennan testified that he did in fact decide to protest on the spur of the moment.

"I was aware of the irony of taking off my clothes to protect my privacy," Brennan said on the stand. "I know my rights. You [the government] have machines that can see us naked. I am upping the ante."

The ante has been heroically upped! At least in Oregon. But all 50 states have a similar free-speech provision in their constitutions. Just a suggestion.