Stripping For Freedom

(By Andrew MacKie-Mason)

John Brennan stripped naked at an airport in Oregon to protest TSA's invasive and unconstitutional searches. He's undoubtedly a patriot, but there are some interesting legal angles to this.

He's apparently been arrested and charged with "disorderly conduct and indecent exposure." As Mark Bennett points out, the government has no chance of proving the indecent exposure charge: mere exposure of the genitals without "the intent of arousing the sexual desire of the person or another person" isn't indecent exposure in Oregon.

However, it looks like they'll be able to get him for disorderly conduct in the second degree (a Class B misdemeanor), under ORS 166.025(1)(g), which reads:

A person commits the crime of disorderly conduct in the second degree if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person...Creates a hazardous or physically offensive condition by any act which the person is not licensed or privileged to do.

It's also worth noting that the actual reaction of the people present is irrelevant: what matters is the risk of disruption, not disruption that did or did not occur:

The text of the statute does not, by its terms, require proof of actual public inconvenience, annoyance or alarm to any particular number of persons. It requires proof that defendants either intended to cause one of those conditions or recklessly created a risk of inconvenience, annoyance or alarm to the public, and it requires proof that defendants made unreasonable noise. Nothing in the language of the statute lends support to defendants' contention that there must be proof **741 that defendants actually caused public inconvenience, annoyance or alarm. 

State v. Willy, 155 Or. App. 279, 283, 963 P.2d 739, 740-41 (1998)

If Brennan stands a chance of getting out of this, it'll probably be by appeal to the First Amendment: nudity is, after all, a constitutionally protected form of protest. That doesn't mean he'll get out of the charges (I actually suspect he won't) but it's probably his best shot.