So reports The Portland Mercury:
The judge ruled this afternoon that protester John Brennan is not guilty of incident exposure charges for stripping down at the PDX security station. The issue basically came down to whether Brennan’s striptease was meant to be a protest or whether, as the state’s prosecuting attorney argued, he retroactively claimed it was a protest to get off the hook for whipping off his clothes. Since “symbolic” nudity is protected as free speech under state law, the judge determined that Brennan’s derobing was a legitimate protest.
I’m skeptical that First Amendment law requires protection for nudity as symbolic expression; I think there’s a sufficiently important government interest to prevent the non-content-related offense that nudity causes to unwilling viewers in the public, and the law is narrowly tailored to that interest. (See United States v. O’Brien (1968) and Clark v. Community for Creative Non-Violence (1984) for more on how the Court treats such generally applicable laws that end up being applied to symbolic expression for reasons unrelated to the content of that expression.) This leaves, of course, the very interesting question of why public displays of images depicting nudity are nonetheless protected, see Erznoznik v. City of Jacksonville (1975), but public nudity generally is not; but while I think the question is difficult, I think that on balance it makes sense to treat bans on certain depictions as based on the context of expression, but bans on public nudity as not.
This having been said, City of Portland v. Gatewood (Ore. App. 1985) has interpreted the Oregon Constitution as protecting expressive nudity, and the defendant here seems to have benefited from that. Thanks to Prof. Eric Freedman and Lowering the Bar for the pointer.