This Week in the Mercury


Wednesday, July 18, 2012

UPDATED: Portland's "Naked American Hero" on Trial—Not Guilty!

Posted by Sarah Mirk on Wed, Jul 18, 2012 at 3:00 PM

John Brennan: Naked American Hero, now clothed.
  • John Brennan: Naked American Hero, now clothed.
Update 2:45pm— Not guilty! The judge ruled this afternoon that protester John Brennan is not guilty of incident exposure charges for stripping down at the PDX security station. The issue basically came down to whether Brennan's striptease was meant to be a protest or whether, as the state's prosecuting attorney argued, he retroactively claimed it was a protest to get off the hook for whipping off his clothes. Since "symbolic" nudity is protected as free speech under state law, the judge determined that Brennan's derobing was a legitimate protest.

Original post:

In April, Portland John Brennan performed the protest that's been seared into our memory: Stripping naked for TSA at the Portland airport.

Today Brennan is on trial for his alleged lewdness, heading to Multnomah County Courthouse at 9am on charges of indecent exposure.

Brennan, hilariously, shares the same name as Obama's chief counter-terrorism adviser. No, the man in the room for the Osama Bin Laden raid is not the same man who is now selling "Expose Yourself to Liberty" t-shirts. But they're both concerned about America's response to terrorist threats, which is why Brennan might get off scot free today. Nudity is an unusually well-protected right under Oregon law and several people have tested the limits of nudity as free speech in previous court cases. Meanwhile, Brennan has been rallying support on Facebook, where he's known as "John Brennan AKA Naked American Hero."

The district attorney already reduced Brennan's misdemeanor indecent exposure charge to a violation, which means that even if he is found guilty, he will mostly likely only have to pay a fine. His trial may take a while or be delayed, so I'll update below the cut throughout the morning!

8:58am—Brennan just arrived at the courthouse, where he was greeted by a small group of friends. He's definitely feeling upbeat about the trial, saying he thinks his lawyer has a strong case and that he's been bolstered by all the support from friends and online.

I asked if he'd been involved in any activism before the strip-down incident. "As a gay man, I grew up on activism," he replied, saying he'd done AIDS advocacy and protesting in the past, but never anything as front-and-center as this.

9:15am—The trial has now changed courtrooms twice, making Brennan's supporters and accompanying reporters awkwardly parade around the building. "How was coming through security today?" someone asked Brennan, since entering the courthouse requires heading through a metal detector. "Fine," said Brennan. "There were no egregious violations of my rights."

10:40am—The first witness is in the case is TSA officer Steven Van Gordon, who relayed the story of Brennan opting out of the full body scanner, requiring him to walk through a metal detector and get a pat down. Brennan didn't raise any protest when Van Gordon patted him down. But when Van Gordon tested his gloves after the pat down, the computer detected "nitrates" on the gloves and Van Gordon told Brennan he'd need additional screening. That's when Brennan got upset and said, "I guess I have to show you that I don't have anything" and stripped totally nude.
"He whipped them off pretty fast," said Van Gordon.

"Were you able to see his genitalia?" asked the prosecuting attorney.
"Yes," said Van Gordon. While the TSA officers called Port police, the crew stacked plastic bins around Brennan to shield his nudity from passing passengers who'd begun pointing and taking cell phone pictures.

When port police arrived and asked Brennan to get dressed, that's when the Naked American Hero said he was protesting and that he was protected under Oregon's nudity laws.

The prosecutor seems to be painting the picture that Brennan wasn't legitimately protesting because he didn't raise any issue during the pat down and wasn't wearing any sort of written message—like painting his chest with some words of protest—admonishing the TSA.

11:35am—The case law up for debate here is Portland v. Gatewood, where a jury determined that while Portland has a city ordinance banning public nudity, being naked as a form of protest is legal under our state constitutional rights: "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever." As long as the nudity is an intentional protest and the nudity is symbolic, Brennan seems to be on pretty solid legal ground. The burden is on the district attorney in this case to prove that Brennan was not stripping as a protest, but for some crazy, unrelated reason.

12:30pm—John Brennan took the stand in his defense, explaining that he flies about once a month for work that that he felt the TSA's body scanners and screenings are an overly invasive act, an overstepping of their job to provide security. When he was told that he'd tested positive for nitrates, Brennan felt he was in trouble with the TSA and would likely be delayed, so he decided on the spot to make a statement about his invasion of privacy by stripping nude.

"I was aware of the irony of taking off my clothes to protect my privacy," Brennan said on the stand. "I know my rights. You [TSA] have machines that can see us naked. I am upping the ante."

The judge is deliberating on the case right now and will likely issue a judgement some time this afternoon.

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