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Protected First Amendment Speech as a Legal Defense

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Naked protester 'not guilty' of indecent exposure

The Oregon State Supreme Court has ruled that nudity is protected speech

By Mark Gomez

Contra Costa Times

PORTLAND, Ore. -- A Portland, Ore. man who stripped naked before a flight to Silicon Valley to protest a TSA security screening at Portland International Airport was found not guilty Wednesday of a misdemeanor charge of indecent exposure.

A judge in Oregon ruled that John Brennan's act of removing his clothing on April 17 in protest of the security screening was an act of protest and protected speech.

Brennan, 50, was arrested April 17 on suspicion of indecent exposure and disorderly conduct after removing his clothes to prove that even though he had tested positive for nitrates on his clothing he wasn't carrying explosives.

Brennan was in line at 5:35 p.m. for an Alaska Airlines flight to San Jose when he got into his birthday suit "as a form of protest against TSA screeners who he felt were harassing him," according to a police incident report obtained by The (Portland) Oregonian newspaper.

However, Brennan previously told this newspaper he did not feel harassed by the TSA workers; instead, he was protesting the pat-down process.

"They are just doing their job and as a citizen of the U.S. I'm doing my job to protect my constitutional rights to privacy, " Brennan, a Pacific Grove native, said in a telephone interview with this newspaper. "The TSA had already violated my privacy by doing a pat-down and being pulled out of the line. It's stripping me of any dignity.

The indecent exposure ordinance states: "It is unlawful for any person to expose his or her genitalia while in a public place, if the public place is open or available to persons of the opposite sex." However, a prior Oregon Court of Appeals decision effectively limits the ordinance to prohibit only public nudity that is "not intended as a protected symbolic or communicative act."

Shaffer & Engle Commentary

 

Commentary by Attorney Elisabeth K.H. Pasqualini, Sex Crimes Attorney, Harrisburg, PA

In Pennsylvania, the defense of protected political speech has never been successfully asserted in any lower court or appellate court decisions. Indecent Exposure is defined as follows:

A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm. If the person knows or should have known that any of the persons present are less than 16 years of age, indecent exposure is a misdemeanor of the first degree. Otherwise, indecent exposure is a misdemeanor of the second degree.

There are time, place and manner restrictions that may be imposed on any "protected speech." For instance, the often cited example, is that one may not shout "fire" in a crowded movie theater. One may not conduct a protest with a bull horn on a public street in a neighborhood at 2 am either. One cannot approach children at a bus stop and offer them salvation by presenting them with Bibles or other religious items. A children's bus stop is a protected place in our society.

However, there may be arguable merit in PA that nudity, while not necessarily recommended in a public place, may be done in a way that is perhaps conceivable as "protected public speech" as the defendant in Oregon at the airport terminal was held to have such a legal defense to the charge. This particular defense is open to debate in PA at the present time.

1 Comment

This is quite interesting.. not sure if standing there naked is going to get the same effect

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