Man Who Protested TSA By Stripping Is Acquitted By Judge

AbrasiveCat writes "In an update to an earlier Slashdot story, the Portland Oregon man who was arrested after stripping naked at a TSA checkpoint at Portland Airport was acquitted of indecent exposure charges. He successfully argued that he was protesting TSA actions, and his actions were protected speech under the Oregon Constitution."

Comments

not going to touch that

[Anonymous Coward]

not going to touch that

Re:not going to touch that

[HermMunster]

What bothers me isn't that he was acquitted, but that he asked for a jury trial, a trial by his peers, and was denied. Generally a judge rules when there's a matter of law rather than a matter of fact that has to be determined. In this case he charged with a criminal offense and he therefore required a jury trial.

Re:not going to touch that

[Immerman]

Well, if he freely admits to the action then there's no question of facts for a jury to decide, is there? The question is entirely whether or not the action was legal based on the applicable laws, which as you point out is generally accepted to be the judge's domain.

Re:not going to touch that

[Fjandr]

While I'm generally in agreement with what you wrote (in regard to actual practice, if not theory), two things are of note. The first is in regard to the typical application of the judge as the finder of law, while the second is in regard to the practice of entering summary judgment when there is complete agreement on both sides as to the facts of the case.

Oregon if one of the four* US States where the State Constitution specifically protects the right of a jury to find in both matters of fact and in matters of law, though this is systematically ignored and jurors informed of the opposite in jury proceedings. Specifically: In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.
You would never know that being in jury selection though, as the state jury informational pamphlet states the exact opposite. By the Constitution the judge is only allowed to instruct the jury as to how the facts they find fit within the context of the law they determine to be controlling the criminal charges, if they determine such a controlling law to exist at all.

As to the decision by the judge to enter a summary judgment via a bench trial without the agreement of the defendant, the Oregon Constitution provides but a single, crystal-clear exception to the right to a jury trial in cases where it is protected: that written application be made by the defendant and be approved by the trial judge. In capital criminal cases, this exception is specifically disclaimed; no capital crime may be subject to a bench trial under any circumstance.

*The others being Maryland, Georgia, and Indiana.

Re:not going to touch that

[brentrad]

Because the prosecution dropped its case to a violation, not a crime. It's not that he was denied a jury trial. "Brennan didn't have the option of letting a jury decide the case because the prosecution dropped its pursuit of a conviction for misdemeanor public indecency. The prosecution is now seeking a conviction for a violation, which is similar to a speeding ticket." Violations don't have the option for a jury trial in Oregon.

This article gives more information:

http://www.oregonlive.com/portland/index.ssf/2012/07/post_247.html [oregonlive.com]

Awesome!

[DarthBling]

This news makes me happy to live in Oregon!

And kudos to the judge for being sensible.

Re:Awesome!

[Hatta]

I wish I lived in Oregon. Any Oregon folk want to organize a naked day at the TSA?

Re:Awesome!

[slacka]

As an expat living in repressed China, this news makes me happy to be a free American. " He who sacrifices freedom for security deserves neither." -Benjamin Franklin How many people do you know that have died from Terrorists? For me, NONE. But Cancer, Stupidity, Obesity, MANY. As an expat, the real threat I see to our freedom is the ignorant throwing away our freedom that our founding fathers died for, because they are scared of the terrorist buggy-man! Stop living in fear and start thinking!

Re:Awesome!

[Anonymous Coward]

How many people do you know that have died from Terrorists?

So what you're saying is that the counter-terrorism measures are working.

Irony

[sixtyeight]

Now that he's established that it's protected speech, everyone can do it.

We can also protest the I.R.S. by throwing our Federal Reserve Notes into a big heap and setting fire to them, but I suspect we won't.

Re:Irony

[makisupa]

It's not so simple - Oregon's constitution grants more speech protection than our federal constitution. The fact that the finding specifically cites the Oregon rather than federal constitution seems telling to me.

Re:Irony

[DarthBling]

I can't comment about other states, but Oregon generally doesn't have a problem if you are naked.

ORS 163.465. Public indecency

(1) A person commits the crime of public indecency if while in, or in view of, a public place the person performs:
(a) An act of sexual intercourse;
(b) An act of deviate sexual intercourse; or
(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.

Combined this with section 8 from the Oregon constitution:

Section 8. Freedom of speech and press. 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; but every person shall be responsible for the abuse of this right.

And you have a pretty strong case why John Brennan's naked TSA protest was not be violating the public indecency statue.

I could be mistaken, but other states may have a problem if you're naked for any reason. This might be why many people say, "Except you have to live in Oregon".

Re:Irony

[pclminion]

Why do people keep saying that? The court in Oregon where he did it ruled that it was protected speech. That doesn't mean it can only be protected speech in Oregon. Do it in other states, and other states' courts will rule on it too.

Oregon is a bit, er, different. The Supreme Court of Oregon has explicitly ruled that erotic/sexual displays are a form of protected speech. That ruling has led to Oregon's status as the strip club capital of the USA, with more strip clubs per capita than anywhere else, including Las Vegas (though most of them are in the Portland area). Portland has an annual Naked Bike Ride event. The police who follow the riders are there to protect them, not arrest them.

That's not to say some other state couldn't take the same view of things, but this decision is very typically an Oregonian decision. There is a clear distinction between lewdness and nudity, and Oregonians for the most part know how to make this distinction.

Re:Irony

[Anonymous Coward]

Portland has an annual Naked Bike Ride event

Note to self: Don't buy a used bike in Portland.

Re:Irony

[brentrad]

Portland Oregon actually has a higher per capita number of strip clubs than churches. Yes, I'm very proud of this fact. :)

Re:free speech?

[sarysa]

I consider it free speech on the following grounds: It essentially says "we know what the TSA really wants, so lets skip all the foreplay and pretense." It's like a jester mocking the king, only this king can't just add another head to his collection.

the story here

[girlintraining]

I think the real story here is that the federal government has become so corrupt and has debased our rights under the US Constitution that we're now having to use state constitutions to defend our freedoms. Many convictions have been upheld by the US Supreme Court for expressing discontent with the US government. It appears the last bastion of hope now lies with the states. I wonder how long before the first state withdraws from the Union, and a new civil war begins.

Re:free speech?

[king neckbeard]

No, it makes perfect sense as a political statement about an agency that wants to grope you or see your naked profile

Now for the Federal Charges

[theshowmecanuck]

I just finished listening to an interview with this guy on "As It Happens" (Thursday, July 19, 2012 Episode, which today... Thursday... will still be at the top). You can look for a podcast of it on CBC Radio or I believe on PRI or NPR (but they may just point to CBC). Or listen online.

The fellow said that he was cleared of the indecency charge in Oregon since that charge was under their jurisdiction. However he still has to go through some Federal tribunal or legal process to address his disruption to the TSA people. And if he decides to dispute this, it goes to a secret tribunal and neither he nor his lawyer will be allowed to discuss the matter. So it's not all over for him.