Although it is discouraging how many people go through TSA checkpoints and submissively comply with (or even show appreciation for) security theater, there are several Americans who have made loud statements. Interestingly, the name “John” seems to increase one’s likelihood of making a stand: John “Don’t Touch My Junk” Tyner, John “You Don’t Need My ID” Gilmore, yours truly Jon Corbett (if I do say so myself!), or in this case, a man named John Brennan.
In April 2012, Brennan found himself at Portland’s airport, opting-out of the scanner and allowing the TSA to pat him down. But, upon the completion of the pat-down, the
molester screener tested his gloves for explosive residue, resulting in a false-positive.
False positives are not exceedingly rare (in fact, every positive has been a false positive, given that the TSA has found 0 terrorists since its inception in 2002), and the TSA has a procedure for when this happens: take you to a back room, and use the front of their hands to rub your genitals. No hyperbole here, folks: this is exactly the procedure, and the one thing I make sure all my friends and family know about TSA screening is that it is better to miss your flight than to go to the back room with a TSA screener. Regardless of what they threaten, do not go.
But Brennan had a better idea: he simply took off all his clothes, right there in the checkpoint, and asked the TSA if it looked like he had a bomb. Predictably, the TSA overreacted, refused to screen him, closed the checkpoint, called the police, and had him arrested.
Dissatisfied with this, the TSA imposed a civil penalty against Brennan under a federal rule that punishes those who “interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties.” 49 C.F.R. § 1540.109. Brennan took the case to the U.S. Court of Appeals, where the TSA argues, with a straight face, that any “failure to obey” or causing of a “distraction” constitutes “interference” under the rule and subjects you to a fine.
The U.S. Supreme Court has squarely rejected “contempt of cop” laws, whereby those who do not “obey” random orders of police officers can be fined. Chicago v. Morales, 527 U.S. 41 (1999). The idea that we should give TSA screeners more authority to force us to submit to their every wish than a police officer is absurd, offensive, and dangerous. As such, I’ve filed a motion to consider an amicus curiae (“friend of the court”) brief, where I’ve outlined for the Court how the TSA has abused the power they already have, and how an expansion of that power will allow TSA screeners to arbitrarily curtail the First Amendment rights (among other rights) of anyone at the checkpoint under threat of fine. (I can only imagine how many times I’d have been fined were the TSA confident they could do so merely for being annoying!). It also discusses the Morales case, above, which Brennan’s attorney didn’t bring to the court’s attention…
To the extent the public was injured on April 17th, 2012, it was not injured by John Brennan removing his clothes, but rather was injured by the TSA and airport police attempting to quash a constitutional right that Americans hold close to our hearts: our right to petition our government for redress. For the foregoing reasons, the Court should decline to allow the TSA to become a discount legislator, police officer, prosecutor, judge, and jury, and accordingly set aside the order levying a fine against John Brennan.
This was my first amicus brief ever, and they’re kind of fun to write because you have to be concise, but get to discuss only the issues that you personally care about. Would definitely do again!
“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’ Presently a law student, he continues to advocate for travel and privacy rights. Twitter: @_JonCorbett, Web:https://professional-troublemaker.com/“
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