On April 17th, a man going through airport security line at Portland’s PDX airport stripped as a form of protest against Transportation Security Administration (TSA) procedures as reported by San Jose’s Mercury News. The man exercised his right to decline the full body scan and then stripped prior to the pat down search. The TSA agents were not amused and called the Oregon police. The protester was arrested and charged with indecent exposure and disorderly conduct and claimed protection under the first amendment and Oregon Supreme Court precedent.
There are a few interesting questions that derive from this incident. First, why do the San Jose Mercury News and the subsequent blogs report about this Oregon precedent without actually citing the case? Granted, this is not a constitutional question, but it annoyed this blogger. I did several searches trying to find this precedent and found a 1987 case State v. Henry that broadened the definition of obscenity, references to a 2005 case dealing with live sex shows and a 2008 county case dismissing charges against a nude bike rider. Based upon Justice Michael Gillette’s opinion in the Ciancanelli case, the airport protester may be correct.
Justice Gillette was clear that the conduct in the Ciancanelli case was protected because the statute was “directed at expression or, at least, the expressive aspect of certain conduct.” He goes on to conclude that “…neither that holding, nor the fact that defendant’s conduct (directing acts of prostitution) occurred in association with live public shows, transforms his conduct into protected speech for all purposes.”
The fact situation here is very different. At the time of his protest he was walking through an airport security line administered by employees of the TSA. While the TSA agents called the Oregon police for assistance with the protester and he was charged under Oregon law, does the place of the protest nullify his protection? The indecent exposure law does not directly target speech; the higher level of protection afforded in the Oregon precedent then does not apply. The appropriate doctrine would be time, place, and manner. It would seem that this particular place is not appropriate for a protest. It is a security line administered by the federal government. Courts have already ruled that the full body scans do not violate the Fourth Amendment due to security concerns. Wouldn’t these same concerns trigger less protection for free expression? This particular protest caused closure of some security lines and likely delays for other passengers trying to board their flights. I have a hard time believing that even in the progressive state that houses Portlandia, this particular protester will find coverage under the First Amendment.
 We blogged a bit about this several months ago: http://clcablog.wordpress.com/2011/08/15/law-and-politics/