The TSA and the First Amendment

by Philip Weber on July 23, 2012

There was a lot of cheering last week when a Portland, Oregon judge found 50-year-old John Brennan not guilty of public indecency. Brennan is the software engineer who stripped naked to demonstrate that he was no threat when TSA agents started questioning him at a checkpoint last April.  

Any celebration is premature; Brennan’s story is far from over.

After he took off all his clothes in a crowded terminal, the TSA had airport police arrest him and escort him to jail. Despite the fact that Portland is famously permissive about public nudity (it holds an annual Naked Bike Ride that attracts thousands of participants), Brennan was charged with public indecency.

You’d think that the TSA would welcome people like Brennan who take it all off. It certainly makes the job of explosives detection easier. (“That’s not a bomb, it’s a man-boob. See? No fuse.”) One could even argue that there should be a “fast lane” for travelers who are so willing to facilitate screening.

There could be separate male and female queues with opaque partitions to block the view of less free-spirited travelers. There could be a coed lane for those heading to Hedonism in Jamaica. If the TSA is going to insist that the only way we can all be safe is for their staff to see if you’re wearing boxers, briefs, or nothing at all, then they can hardly object to someone who so helpfully answers the question.

But as Judge David Rees rightly noted, Brennan’s Magic Mike moment had less to do with indecency than with his constitutionally protected right to free speech. “It is the speech itself that the state is seeking to punish, and that,” said Rees, “it cannot do.”

In fact, if anyone has acted indecently, it’s the TSA. Wearing the badges of law enforcement officers is dishonest. Mocking travelers is deplorable. Groping grandmothers, children, and the disabled is unforgivable.

In contrast, Brennan was doing one of the most decent things imaginable: he was protesting what he saw as an overreach by his government. He was having a “pen(is) is mightier than the sword” moment. He was enjoying that most quintessentially American of rights: the right to free expression.

And that’s what really torqued the TSA. Standing in line for their nudie scanner, Brennan mocked them. When they began to order him around, he pulled down his pants in protest. He could have flipped them the bird or called them jackbooted thugs. He could have impugned the purity of the screener’s mother. But instead, John Brennan chose to stand quietly showing he had nothing to hide.

You can almost hear the screams of TSAnguish as Brennan gathered up his modesty, tossed it in a trash bin, and set it on fire rather than let them take it from him.

Let’s set aside for a moment the question of whether the TSA violates your Fourth Amendment right against unwarranted search and seizure when it looks at you with its magic electro-depantsing machine. Instead consider that the TSA is no fan of the First Amendment either.

The TSA has been accused in the past of cautioning bloggers against writing negative stories about the agency, and they have admitted to keeping one of their harshest critics, Bruce Schneier, from testifying before Congress. They handcuffed and detained college student Aaron Tobey for passing through a checkpoint with the Fourth Amendment written on his chest (Tobey sued; his 4th Amendment claim was thrown out, but the judge allowed his claims on 1st Amendment and unlawful detention grounds to go forward).

At most, TSA agents should have said to John Brennan, “Okay, we get it, you think that current security procedures are overly invasive. We hear that a lot. Here’s the phone number for your Congressman’s office.”

But they didn’t.

They had him arrested.

Because they were angry.

Because John Brennan mocked them.

That’s why it’s too early to celebrate Brennan’s acquittal. He was cleared of indecency charges in Multnomah County Circuit Court, but what has not been widely reported is that the TSA is still conducting its own federal investigation to determine if Brennan interfered with the screening process.

And can you guess who’s conducting that investigation? Not an independent prosecutor. Not a court. Not a mediator. Not an impartial third party. The TSA will determine, in its sole discretion, if John Brennan wronged them.

TSA investigations rarely turn out well for anyone but the TSA. Even when the agency is in the wrong it rules in its own favor. Consider, for example, the strip-search of three elderly women at JFK in December 2011. After a “thorough” investigation, the TSA insisted that the women were never strip-searched — in essence, calling them liars.

A constitutionally oriented reader might ask, “Isn’t a TSA investigation a case of double jeopardy?” Maybe, but an agency that is arguably in violation of the First and Fourth Amendments needn’t be troubled by a little double jeopardy.

The TSA could still take the high road here. Instead of their usual pugnacious stance they could issue a statement saying that they understand the scanners are unpopular. They could admit that they’ve done things wrong and they could invite people like John Brennan or Carolyn Durand or Lynsie Murley or Nadine Kay Hays or Steve Bierfeldt or Melinda Deaton or John Gross or Wendy Thomson or Tim Rasmussen or Joshua Frank or Jayve Montgomery any of the thousands of people abused by the TSA to be part of an advisory group to help make airport security into a more collaborative enterprise.

But probably not. Like a bad TV-cop, TSA head John Pistole doesn’t like it when Americans talk back to him. Pistole doesn’t even like it when Congress challenges him. In April Pistole celebrated the guilty plea-deal of Yukari Miyamae with an upbeat memo to the entire staff, promising to vigorously protect their right to do what they do. (One can easily imagine that if Pistole, the former Number Two at the FBI, had been at the airport that day, a handcuffed John Brennan might have “accidentally” walked face-first into someone’s fist. Oops.)

What if the TSA finds, in its sole judgement, that Brennan violated TSA rules by interfering with the TSA screening process? He could be fined $11,000 and put on the No-Fly List — at least that’s what the TSA is threatening, just as they threatened John Tyner.

In fact, no one to date has been fined $11,000 by the TSA, and the TSA doesn’t have the power to put anyone on the No-Fly List. That list is compiled and maintained by the FBI’s Terrorist Screening Center, not by the TSA.

We all know that the TSA is quick to deploy DYWTFT – “Do you want to fly today?” – anytime it is questioned. Though Brennan is normally a frequent flier, he decided that principle was more important than his personal travel plans.

The Supreme Court has long held that Americans are free to travel anywhere they like, at least inside the country (places like Cuba are another matter). It is a right so fundamental, like eating and breathing, that it’s not even included in the Constitution (though it was specifically enumerated in the Articles of Confederation). As recently as 2006, the 9th Circuit, which includes Brennan’s home city of Portland, reiterated that right. What the 9th Circuit didn’t say is that Americans have a right to fly, although 49 USC Section 40103 guarantees citizens the “public right of transit through navigable airspace.”

Did John Brennan win a Pyrrhic victory in court last week? Will the TSA try to deny him his fundamental right to travel — and thereby his livelihood — because he challenged them?

If they do, another shameful chapter of this agency will have been written.

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