Naked man arrested at Portland International Airport after disrobing at security
May 12, 2013, 11:35 pm
#136
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In regards to this portion already mentioned...
Quite bizarre he can't use the constitutional rights defense in front of the law judge, but should be able to if this gets appealed. I see this ongoing a year from now and I hope in the end, he will be vindicated. And to the lawyer taking this on pro bono, you have my personal thanks.
Next week, however, the administrative law judge won't be allowed to consider Brennan's defense that he was exercising his constitutional rights, his attorney said.
If Brennan loses, Callahan said they'll appeal to a higher court -- either U.S. District Court or the 9th U.S. Circuit Court of Appeals. Both courts can consider Brennan's free speech defense, Callahan said.
If Brennan loses, Callahan said they'll appeal to a higher court -- either U.S. District Court or the 9th U.S. Circuit Court of Appeals. Both courts can consider Brennan's free speech defense, Callahan said.
May 13, 2013, 12:11 am
#137
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Quite bizarre he can't use the constitutional rights defense in front of the law judge, but should be able to if this gets appealed. I see this ongoing a year from now and I hope in the end, he will be vindicated. And to the lawyer taking this on pro bono, you have my personal thanks.
May 13, 2013, 3:14 am
#138
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Someone correct me if I'm wrong, but my understanding is that administrative law judges cannot hear constitutional issues since they are not Article III judges. They are representatives of the agency, and they simply make sure that the agency acted in accordance with the law. Only the "real" federal judges can strike down laws as unconstitutional.
So yeah, TSA will show up in the kangaroo court and claim he disrupted security and so long as no one disagrees that the correct policy was followed (SSI!), he's guilty.
May 13, 2013, 5:08 am
#139
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May 13, 2013, 7:44 am
#140
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Headline reads:'Naked man arrested at Portland International Airport after disrobing at security'
Question? If the man is naked, how does he remove the clothes?
Seems it should be that the headline is more like 'man arrested for nudity after disrobing'
Sorry, I could not resist. Since he was smart to make the process so easy, lets give him the credit properly.
Question? If the man is naked, how does he remove the clothes?
Seems it should be that the headline is more like 'man arrested for nudity after disrobing'
Sorry, I could not resist. Since he was smart to make the process so easy, lets give him the credit properly.
May 13, 2013, 7:52 am
#141
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There is no way the court would rollback the doctrine and practice of administrative law; if they rule it will be to affirm the concept and hand the TSA a nice, firm precedent for their carte blanche. I see no good news coming out of it at all.
5th Amendment challenge? Nope.
The U.S. Supreme Court has also held that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude ordinary civil or administrative proceedings against a person who already has been prosecuted for the same act or omission. Nor is prosecution barred by double jeopardy if it is preceded by a final civil or administrative determination on the same issue.
Pay the fine and let it go.
May 13, 2013, 8:09 am
#142
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A naked person who is otherwise proceeding through the screening process would not seem to be interfering with or disrupting anything. However, the reactions of onlookers (or screeners) could be quite disrupting. But then aren't they the ones causing the problem?
In many of these cases, it seems like the reaction of the onlookers is the real source of disruption/interference.
May 13, 2013, 10:19 am
#144
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This is what I wonder about. Does the legal threshold for "disruption," "interference," or the similar "disorderly conduct" and "disturbing the peace" depend on the behavior of the accused or of the observers?
A naked person who is otherwise proceeding through the screening process would not seem to be interfering with or disrupting anything. However, the reactions of onlookers (or screeners) could be quite disrupting. But then aren't they the ones causing the problem?
In many of these cases, it seems like the reaction of the onlookers is the real source of disruption/interference.
A naked person who is otherwise proceeding through the screening process would not seem to be interfering with or disrupting anything. However, the reactions of onlookers (or screeners) could be quite disrupting. But then aren't they the ones causing the problem?
In many of these cases, it seems like the reaction of the onlookers is the real source of disruption/interference.
May 13, 2013, 10:33 am
#145
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Someone correct me if I'm wrong, but my understanding is that administrative law judges cannot hear constitutional issues since they are not Article III judges. They are representatives of the agency, and they simply make sure that the agency acted in accordance with the law. Only the "real" federal judges can strike down laws as unconstitutional.
May 13, 2013, 10:36 am
#146
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How would TSA counter that argument?
May 13, 2013, 10:40 am
#147
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This is what I wonder about. Does the legal threshold for "disruption," "interference," or the similar "disorderly conduct" and "disturbing the peace" depend on the behavior of the accused or of the observers?
A naked person who is otherwise proceeding through the screening process would not seem to be interfering with or disrupting anything. However, the reactions of onlookers (or screeners) could be quite disrupting. But then aren't they the ones causing the problem?
In many of these cases, it seems like the reaction of the onlookers is the real source of disruption/interference.
A naked person who is otherwise proceeding through the screening process would not seem to be interfering with or disrupting anything. However, the reactions of onlookers (or screeners) could be quite disrupting. But then aren't they the ones causing the problem?
In many of these cases, it seems like the reaction of the onlookers is the real source of disruption/interference.
But this is an administrative hearing so the hearing officer has greater latitude.
That said, the TSA is trying to have him fined for engaging in Constitutionally protected activity. No matter what the admin officer does, I expect a court reviewing that decision would have a problem with penalizing Constitutionally protected activity.
May 13, 2013, 1:32 pm
#148
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a governmental regulation on free speech* is sufficiently justified if:
(1) it is within the constitutional power of the government;
(2) it furthers an important or substantial governmental interest;
(3) the governmental interest is unrelated to the suppression of free expression;
(4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
(1) it is within the constitutional power of the government;
(2) it furthers an important or substantial governmental interest;
(3) the governmental interest is unrelated to the suppression of free expression;
(4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
(* includes freedom of expression)
May 13, 2013, 2:15 pm
#149
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Nudity per se is not protected by the 1st Amendment in all instances. While there is no Federal statute banning public nudity most, if not all, States have one as do very many cities. The Constitutionality of such laws is governed by the "O'Brien" test:
Far from cut and dry and the ALJ won't even hear the 1st Amendment argument, so that can't be part of any appeal. All the TSA has to do is demonstrate that Brennan interfered with the screening process and, much as I despise the TSA, that's a no-brainer. He clearly did.
(* includes freedom of expression)
Far from cut and dry and the ALJ won't even hear the 1st Amendment argument, so that can't be part of any appeal. All the TSA has to do is demonstrate that Brennan interfered with the screening process and, much as I despise the TSA, that's a no-brainer. He clearly did.
(* includes freedom of expression)
What more could TSA ask for?