As you may recall, after John Brennan showed TSA agents in Portland he didn't have a bomb by taking off his clothes, they got all upset about it and charges were filed. See "TSA: Wants to See You Naked, Complains When You Get That Way," Lowering the Bar (Apr. 18, 2012). Brennan was acquitted of indecent-exposure charges because Oregon considers "symbolic nudity" to be protected free speech. But does the TSA care about constitutional rights?
Was that a rhetorical question?
Yes it was.
Was "was that a rhetorical question?" also a rhetorical question? Yes, I think it was, but we have to go on now.
The TSA imposed a $1,000 civil fine, claiming Brennan violated the rule that one may not "interfere with, assault, or intimidate screening personnel." But it was undisputed that Brennan was quiet and polite from start to finish, so he didn't assault or intimidate anyone, nor did he interfere with anyone physically. The TSA's argument is that his actions required agents to surround him and shut down the checkpoint, and therefore he "interfered with" screening personnel.
This sort of argument is what we lawyers refer to as "bullshit."
It's the same argument made by police officers who arrest people they see filming them in a public place. You have a First Amendment right to record officers' actions in public. You do not, of course, have a First Amendment right to get in their way when you do it, but even when that hasn't happened, law enforcement has repeatedly argued that the arrests are legit because the detainee was "disturbing the peace" or they had to divert resources to deal with the "disturbance" and so on. Basically, that if they decide to hassle you (even if unjustified), then you are somehow the one who has interfered with them. This is the TSA's position in Brennan's case, and on April 2 (probably delayed a day so people wouldn't think he was joking), an administrative-law judge agreed, though he reduced the fine to $500.
The ruling comes down to this one point:
Respondent's actions in stripping and dropping his clothes on the floor and refusing to comply with [the agents'] directions … constituted interference with their duties. TSA screening procedures required [them] to conduct a secondary screening due to the ETD alarm indicating nitrates were present. By dropping his clothes on the floor, Respondent presented an actual hindrance to the accomplishment of that task. The distraction caused by Respondent’s actions required [the agents] to shut down the checkpoint and divert other [agents] to this incident [and] compromised their ability to perform their screening duties.
Emphasis added. The whole ruling turns on that one sentence, and it's wrong.
Brennan opted out of scanning and got a pat-down. When the agent tested his gloves, the alarm went off. That means the machine has detected certain substances (like nitrates) found in explosives (and hand lotion, and lawn fertilizer, and bacon, etc., etc.), and you then get a further pat-down ("secondary screening") to see if you are carrying bacon, I mean a bomb. That's when Brennan stripped. This demonstrated quite clearly that he was not carrying a bomb. But the ruling concludes that "by dropping his clothes on the floor," Brennan "hindered" their efforts to check for a bomb. Huh?
He literally could not have made it any easier for them to see whether he was carrying a bomb on his person. Nor did he interfere with them checking the pile of clothes—they didn't even try to do that. In fact, "TSA personnel directed [Brennan] to put his clothes back on at least three times," the ruling states, not because he was free to go but so they could check him again with his clothes on. What? And when he refused, that's when they closed the checkpoint. Why? The security risk posed by a naked and unarmed man?
Because he embarrassed them, that's why. They could have checked his clothes and then said, okay, no bomb, you made your point, put your clothes on and go about your business. They didn't. They called the cops and shut down the checkpoint not because there was a potential threat, but because they wanted to punish him for protesting. He didn't interfere with screening, they did. As in the cop-filming cases, the TSA's position here has to be rejected because if they can turn any protest into "interference" by virtue of their own actions, that effectively gives them a veto over protests.
Isn't that a First Amendment issue too? What about Brennan's constitutional defenses? Ha! Who cares? According to TSA regs, its ALJs "may not: … (v) Decide issues involving the validity of a TSA regulation, order, or other requirement under the U.S. Constitution … or other law." Well, that's handy! We'll just issue a regulation preventing us from considering whether our regulations are illegal or unconstitutional. ("Wait, can we do that?" "I don't know—I'm not allowed to consider it!" <laughter>)
What about judicial review? As explained very well by the Papers, Please! blog, this was an internal agency ruling, not an actual court ruling. Brennan can appeal within the agency, and when he loses, then the judicial branch will get hold of this. But under a TSA-friendly law, that case must be heard by the circuit court of appeal, not the federal district court. A court of appeal can't hold hearings or have a trial, so the law effectively limits review to the record developed in the agency's hearing. That may or may not be an issue here, but why should TSA proceedings get this special treatment? They shouldn't.
Will the agency appeal reverse this injustice? That's another rhetorical question. But hopefully the Ninth Circuit will.