691 F. App'x 332
9th Cir.2017Background
- At Portland International Airport, TSA officers told John Brennan he needed additional screening after testing positive for explosives; in response Brennan stripped naked at the TSA checkpoint.
- Brennan refused three separate orders to get dressed; TSA closed the checkpoint, surrounded him with bins, and called police to remove him.
- TSA imposed a $500 civil fine under 49 C.F.R. § 1540.109 for interfering with screening personnel.
- Brennan petitioned for review, arguing his nakedness constituted expressive conduct protected by the First Amendment, and also raised challenges to the regulation’s application and vagueness under the Due Process Clause.
- The Ninth Circuit exercised jurisdiction under 49 U.S.C. § 46110 and issued a nonpublished opinion denying the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brennan’s stripping was expressive conduct protected by the First Amendment | Brennan: stripping was communicative expression deserving protection | TSA: conduct was not communicative and thus not protected; was interference with screening | Held: Not protected — Brennan failed to show a viewer would understand the conduct as communicative |
| Whether Brennan’s conduct violated 49 C.F.R. § 1540.109 (interfering with screening personnel) | Brennan: conduct did not meet the regulation’s prohibition | TSA: naked refusal to dress, closure of checkpoint, and need for police removal constituted interference | Held: Violated the regulation; conduct falls within ordinary meaning of "interfere" |
| Whether the regulation is unconstitutionally vague under Due Process | Brennan: regulation vague, fails to give fair notice and invites arbitrary enforcement | TSA: regulation provides ordinary, settled meaning of "interfere," and is civil (so less exacting) | Held: Regulation not unconstitutionally vague; ordinary meaning gives fair notice |
| Whether civil penalties require greater vagueness tolerance | Brennan: (implicit) civil fine still requires sufficient precision | TSA: civil nature permits greater tolerance for imprecision | Held: Court applied greater tolerance for civil enactments and found the rule sufficiently clear |
Key Cases Cited
- Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (expressive conduct test; whether conduct would be understood as communicative)
- Hilton v. Hallmark Cards, 599 F.3d 894 ( Ninth Circuit discussion of expressive conduct and communicative intent)
- United States v. Williams, 553 U.S. 285 (vagueness doctrine and settled legal meanings)
- Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (tolerance for vagueness differs for civil vs. criminal penalties)
- United States v. Kilbride, 584 F.3d 1240 (ordinary, contemporary, common meaning in vagueness analysis)
- United States v. Gwyther, 431 F.2d 1142 ("interfere" has settled legal meaning)
- United States v. Bucher, 375 F.3d 929 (applications of "interfere" in Ninth Circuit precedent)
- United States v. Willfong, 274 F.3d 1297 (applications of "interfere" in Ninth Circuit precedent)