Circuit Judge David Rees agreed with the defense that protest overrides nudity laws: ”It is the speech itself that the state is seeking to punish, and that it cannot do.”
Brennan told the court:
I know the irony of taking off my clothes to protect my privacy. They’re getting close to seeing us naked, so I thought I’d up the ante.
The high-tech consultant and frequent flyer maintains his protest was spontaneous:
The machine went off, and I asked what it was and he said ‘nitrates,’ which I know from Oklahoma City is one of the explosive ingredients. And I was not interested in being hassled so I took off my clothes to show them I was not carrying any explosives.
Brennan still could be fined up to $11,000 if the TSA finds that he interfered with the screening process. He also could land on the no-fly list.
Penn and Teller did a thing on free speech a few years ago and by digging through supreme court precedent they came to the conclusion that stripping naked in the form of a protest is actually protected by free speech. If it weren’t in the form of a protest it would be indecent exposure. I think that’s awesome.