                                                                           FILED
                             NOT FOR PUBLICATION
                                                                           MAY 16 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


JOHN BRENNAN,                                    No.   14-73502

              Petitioner,                        TSA No. 12-TSA-0092

 v.
                                                 MEMORANDUM*
U.S. DEPARTMENT OF HOMELAND
SECURITY; TRANSPORTATION
SECURITY ADMINISTRATION,

              Respondents.


                     On Petition for Review of an Order of the
                      Transportation Security Administration

                             Submitted May 12, 2017**
                                 Portland, Oregon

Before: BYBEE and HURWITZ, Circuit Judges, and ZOUHARY,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
      When Transportation Security Administration (TSA) officers at Portland

International Airport told John Brennan that he needed to undergo additional

security screening because he tested positive for explosives, Brennan, in the middle

of a TSA checkpoint, stripped naked. When TSA officers told Brennan to get

dressed, he refused—three times. After TSA officers had to close down the

checkpoint and surround Brennan’s naked body with bins until the police arrived

to remove him, the TSA fined Brennan $500 for interfering with screening

personnel in the performance of their duties. See 49 C.F.R. § 1540.109 (“No

person may interfere with, assault, threaten, or intimidate screening personnel in

the performance of their screening duties under this subchapter.”). Brennan

petitioned for our review. We have jurisdiction under 49 U.S.C. § 46110, and we

deny the petition.

      Brennan’s core contention is that stripping naked in the middle of a TSA

checkpoint is expressive conduct protected by the First Amendment. But Brennan

fails to carry his burden of showing that a viewer would have understood his

stripping naked to be communicative. See Clark v. Cmty. for Creative Non-

Violence, 468 U.S. 288, 293 n.5 (1984); Hilton v. Hallmark Cards, 599 F.3d 894,

904 (9th Cir. 2010). Therefore, his conduct is not protected by the First

Amendment.


                                          2
      Brennan also argues that his conduct did not violate the TSA regulation and

that even if it did, the regulation is too vague to survive challenge under the Due

Process Clause. Neither argument has merit. The regulation prohibits

“interfer[ing] with . . . screening personnel in the performance of their screening

duties.” 49 C.F.R. § 1540.109. A regulation is unconstitutionally vague if it “fails

to provide a person of ordinary intelligence fair notice of what is prohibited, or is

so standardless that it authorizes or encourages seriously discriminatory

enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). In making

this judgment, we provide “greater tolerance of enactments with civil rather than

criminal penalties because the consequences of imprecision are qualitatively less

severe.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

498–99 (1982).

      Brennan’s conduct falls squarely within the regulation’s “ordinary,

contemporary, common meaning.” United States v. Kilbride, 584 F.3d 1240, 1257

(9th Cir. 2009). We have long recognized that “‘interfere’ has such a clear,

specific and well-known meaning as not to require more than the use of the

word[] . . . in a criminal statute.” United States v. Gwyther, 431 F.2d 1142, 1144

n.2 (9th Cir. 1970). In other words, the word has a “settled legal meaning[].”

Williams, 553 U.S. at 306. And courts have often defined and applied it, see, e.g.,


                                           3
United States v. Bucher, 375 F.3d 929, 932 (9th Cir. 2004); United States v.

Willfong, 274 F.3d 1297, 1301 (9th Cir. 2001), but never in a way that would lead

a person of ordinary intelligence to think that he or she could strip naked at a TSA

checkpoint and refuse to get dressed, leading to the closure of the checkpoint.

      The petition for review is DENIED.




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