PORTLAND, Ore. – In April 2012, 50-year-old Portland resident John Brennan stripped naked at a security checkpoint in the Portland Airport to protest what he says were invasive, unnecessary practices by the Transportation Security Administration. He was arrested and charged with indecent exposure. A media frenzy and five-year legal battle ensued, with Brennan fighting both criminal and civil fines for what he says was his legal right to protest.
Brennan won his criminal case but for years has been fighting a $500 civil fine levied by the TSA, for interfering with the screening process. Brennan took that fight all the way to the U.S. 9th Circuit Court of Appeals.
On Tuesday, Brennan learned the court denied his appeal. The court said Brennan interfered with the TSA and didn’t properly communicate that his choice to take off his clothes was a protest.
“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. Therefore, his conduct is not protected by the First Amendment,” the court said.
The TSA refused to comment further.
“We'll let the ruling speak for itself,” said TSA spokesman Nico Melendez.
For Brennan, who is now about to turn 55, the ruling wasn’t so much a loss as an unsurprising, yet disappointing end to a fight that has come to define his life. But despite the court’s decision, Brennan says he would do the same thing again today.
“I have confirmed for myself that nude protest is an effective and attention-getting way of bringing light to a cause,” he said.
Brennan spoke to KGW about why he took off his clothes in protest, why he chose to fight the federal government for so long, what he hopes others will learn from his journey and how his status as a white man allowed him to do what he did.
KGW: How did you react when you learned of the 9th circuit ruling?
Brennan: “I was disappointed. I had higher hopes for this case and I was disappointed in the ramifications that it has. They focused on two points in their short decision. One was they essentially deferred to the TSA for their definition of interference, saying they can determine that better than the courts can. The second was that my standing there naked did not communicate enough that I was protesting.
“I had hoped to get a full victory here. To have the courts inform this federal agency that their wording is too vague. That their absolute control about interpreting the word ‘interference’ is too broad and too vague. I had also hoped to have nudity evaluated in terms of the US Constitution.
“I don’t believe that standing at a TSA checkpoint disrobed is interference. I believe that the accusation of me carrying explosives [The TSA screener said they found nitrates, which can be used in bombs, on Brennan’s clothes] is a fairly serious accusation and that I could take action to let them know I wasn’t carrying a bomb. If they were uncomfortable with my nudity, that was one issue, and that doesn’t have to do with their job.”
What made you decide to strip in protest five years ago?
“I was traveling for work, heading to the San Jose Airport. I traveled regularly and as usual I opted out of the electronic screening and chose a manual pat down. I received the pat down and the TSA officer checked residual on his gloves for chemical residual and they’re testing for explosives. I was cooperative, I waited, I heard the machine go off. I sensed something was taking longer. I asked the officer what was going on and he informed me I tested positive for explosives. That concerned me because I can’t remember when, if ever, that happened before. I asked him what kind of explosives and he said he could not tell me but his supervisor could. His supervisor walked over to me and I asked and he said I tested positive for nitrates.
“In my head I thought nitrates, fertilizer, Oklahoma City, they think I’m carrying a bomb.
“I was somewhat in shock but still very calm and I decided the easiest way to address this and to protest this likely false positive of me carrying explosives was to remove my clothing. So in a very calm state I removed my clothing. They asked me to stop and I knew I was within my rights in Oregon to protest naked. I disrobed and waited for my screening to continue.
“TSA again asked me to put on my clothes. I said, ‘I believe I’m within my rights to be here.’ And at some point they called the Port of Portland Authority police and I explained to them that I was protesting and that it was my right to be here disrobed in a form of protest. They disagreed. They had me arrested, they handcuffed me, they shielded me, they draped me – they found something to wrap around my waist to hide my protest -- and take me through the airport to the jail cells that are waiting in the back of the airport.”
Were you scared?
“I was not scared. I was maybe nervous. It was a new experience. I’ll say that the half a minute of taking off my clothes was the closest that I’ve ever come to being in touch with a higher power. It was just the most serene, empowered, easy moment I probably have ever had, because it was the right thing to do. I really understand that liberty is not free. And I can only have the rights that I fight for. And I believe that the TSA is regularly violating our civil rights. And they do it by banging the drums of fear. Do they serve a legitimate purpose? Yes. Do they do it by doing the least amount possible? No. Assuming that every single air traveler is a potential terrorist is, in my opinion, too much of an invasion on our privacy.”
Why do you always choose to opt out of TSA body scans?%
“I choose to opt out of the body scan -- one, because it is optional, and two, to allow TSA to understand that not everybody wants to comply with their technology. When this was happening, there were machines in place that were reported to be able to show a pretty accurate naked picture of someone through their clothes. So the fact that I’m standing there naked is offensive to them, at a time when machines can practically show me naked, is a little strange. And I believe that if everyone chose to opt out, it would break the system and we would find a better solution to airport security.”
Why did you continue to fight the TSA fine?
“I decided to pursue this even after my legal victory in the criminal case because I didn’t get arrested to pay a fine. I was following my principles and I was defending my liberty, challenging the government. I encourage everyone to find a way, if they’re unsatisfied with aspects of the government, to stand up and say, ‘Hey, this doesn’t work for me.’”
Is there a reason you chose to protest TSA practices, instead of another issue?
“I didn’t know that this would turn into a five-year battle. In some ways, the protest chose me. It was the testing positive for explosives and, I said, this just isn’t right. And I’m in the right place, I’m right in front of the people who are accusing me, and I have an ability to do something in Oregon that in many other states, people couldn’t do this in. I have had friends tell me that they would have chosen different battles. This is the battle I ended up in and I’m glad I did it. I would do it again. And I hope that my protest has inspired other people to take action against injustices at all levels.”
Have you heard from other people who were inspired by what you did?
“Yes I have. Almost everyone has a TSA story. TSA is not a loved organization. I have a lot of support across political spectrums. I have Libertarians who really support my cause and liberals who support nudity, who support free speech, are very much supporting. Most of my legal costs were covered by crowdsourcing. I’ve had checks as small as $5, up to $7,500, from strangers coming forward to support standing up against the government. While the TSA has a lot of animosity around the country, it really was standing up against the government’s misdeeds.”
Was there any fallout in your life from the protest?
“I was working for a large Silicon Valley company. Within a week of the protest I was fired. That hit me out of left field. It was unexpected and we were just finishing up a two-year project, in which we did a great job. To be sideswiped like this when the project was launching was really unfortunate.
“One thing I learned from losing my job from this protest is if some large company wants to have employees who can make decisions on their feet and evaluate complex situations, they need to be prepared for employees who take action like I did. They may not ethically or morally agree with what I do, but if you want strong employees to help your company grow, you need to understand the type of people those people are going to be in their lives.”
Do you ever feel like you were discriminated against at an airport?
“Not at all. Two incidents come to mind. One was coming through PDX. I finished my screening and I asked my screener, ‘So is my screening done?’ He said yes. I said, ‘So you know I’m that guy.’ He said yes and we both got a laugh out of it. I said, ‘Is there a picture on the break room of me?’ He said, ‘No I was at the airport that day and we all know who you are.’ He said it in a very friendly tone.
“The other time I was going through security, going through the other end and putting on my shoes, and my arresting officer was there. He’s just a person, I’m just a person, we’re both just doing our job. I said, ‘Are you here for me?’ He laughed and said, ‘No, there’s somebody else down here.’
“There’s been no retaliation. TSA employees have a job and that’s to keep our skies safe for flying. Just as they were doing their job I was doing my job which is to stand up for my rights.”
What do you hope people take away from your 5-year-long fight?
“What I hope people take away from this is a battle is worth fighting even if it doesn’t have the full outcome that you’d like. I was able to raise issues about protest, about the TSA in general. I garnered a lot of support. I’d like to think my protest changed TSA policy over the years. I’ve noticed they’ve been making changes. I know the machines that provided an almost-naked picture through the clothes are no longer in use, or have been pulled out of the major airports. That seemed like a step in the right direction toward potential violations of privacy.”
Is there anything else you want to share?
“Black Lives Matter has really been in the news lately. I want to say my protest was an example of me using my white privilege, my male white privilege, to take on a force greater than myself. And I encourage men out there, and white people out there, to use some of your privilege. Because I can’t imagine what would have happened if a person of color had done what I did. I don’t think it would have had as good of an outcome. As a person who acknowledges his privileges, I was able to take a stand and be heard. I encourage other people to stand up for their rights.”
Photojournalist Gene Cotton contributed to this report
Published May 17, 2017