The ACLU Hearts Larry Craig

Katherine Mangu-Ward | September 20, 2007

On Monday, the ACLU filed a brief in support of Larry Craig's motion to withdraw his guilty plea in the Great Public Toilet Caper of 2007. Bruce Reed summarizes:

The ACLU brief is chock full of new, convincing arguments that Craig got a bum rap. For starters, toe-tapping isn't a crime—it's free speech. The ACLU says the only thing that's "overbroad" in this case is Minnesota law. It's not a crime in a public place to solicit private sex. Unless the arresting officer is a foot-reader, he has no way of knowing the senator's intent and no right to discourage public-private partnerships.

Read the whole thing here [PDF].

In face, Larry Craig seems to have brought a new era of peace and harmony--a report from the Justice Department sides with Craig (in theory) as well:

Even the Bush Administration Agrees: The Cops Set Him Up—and He's Not Gay! A blockbuster report from the COPS Office of the Bush Justice Department backs up Sen. Craig's entire story. The report, Illicit Sexual Activity in Public Places, evaluates 19 different methods of policing public sex. Minneapolis's approach—"using undercover decoys"—ranks dead last, along with "harassing and intimidating suspects." According to the distinguished criminologist who wrote the report, decoys have "limited effectiveness," while "the social consequences may be devastating," and "officers may be reluctant to take on such assignments."

Isn't it nice to see everyone coming together for a little libertarian love?

More on Craig here. More on the ACLU here.

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|9.20.07 @ 11:43AM|#

No, no, I was just asking the woman in hot pants if she wanted to provide me with a sport utility vehicle GM produces based on the military HUMVEE platform.

"Hey baby, give me a hummer" totally wan't a proposition for sex. It's not illegal to ask for a car, is it? First Amendment! First Amendment!

For starters, toe-tapping isn't a crime-it's free speech. The ACLU says the only thing that's "overbroad" in this case is Minnesota law. It's not a crime in a public place to solicit private sex. Unless the arresting officer is a foot-reader, he has no way of knowing the senator's intent and no right to discourage public-private partnerships.

Hold on a second - how can toe-tapping be "free speech" but somehow the not be the communication of a message?

|9.20.07 @ 11:51AM|#

Wouldn't the time to challenge the constitutionality of the MN law have been before pleading guilty rather than after?

Larry Craig needs to leave the senate because of his incompetence and stupidity -- regardless of whether he is gay or straight or a tap-dancer.

Oh and I agree with the ACLU about the nonsensical nature of MN law. Why shouldn't I be able to ask a man for sex in the bathroom if that's what floats my boat?

Timothy|9.20.07 @ 11:53AM|#

In face, Larry Craig seems to have brought a new era of peace and harmony

Finally, an era of facial harmony!

SIV|9.20.07 @ 11:54AM|#

joe,

Just don't ask her to model a bra.

bill|9.20.07 @ 12:07PM|#

It's against the law to violate someones privacy in a public restroom by sticking you foot, hand or head under the stall partition. That is what he was arrested for, not soliciting sex.

|9.20.07 @ 12:25PM|#

It's against the law to violate someones privacy in a public restroom by sticking you foot, hand or head under the stall partition. That is what he was arrested for, not soliciting sex.

Bill, it's true the senator was arrested on charges including interference with privacy, but that charged was dismissed. Also, it's not clear that "sticking your foot, hand, or head under the stall partition" would violate the interference law, which is crafted to prohibit surreptitious surveillance of people in private places--like placing a hidden video camera in a restroom stall or dressing room. If you stick your foot under the stall, hoping the guy next to you responds, you are not acting surreptitiously.

My understanding was that it was the looking through the door crack at the undercover cop before he entered the stall next to him that was the basis of the charge. That's how I read it anyway.

If he beats the rap, what are his chances in the next Idaho election in 2008? Slim or none?

|9.20.07 @ 12:28PM|#

Hold on a second - how can toe-tapping be "free speech" but somehow the not be the communication of a message?

Dan T, I don't think the ACLU's argument is that the toe tapping does not communicate a message--it's that the message could either be "Let's go back to my place and have sex" (which is not soliciting an illegal act) and "let's have sex right here in this stall (which may or may not be solicting an illegal act--the brief notes that a court in Minnesota ruled that two men having sex in a public restroom had a reasonable expectation of privacy there).

|9.20.07 @ 12:42PM|#

Just don't ask her to model a bra.

I wonder how the Sears and K Mart ad agencies feel about this one? Sticky wicket, no?

|9.20.07 @ 12:44PM|#

Unless the arresting officer is a foot-reader, he has no way of knowing the senator's intent and no right to discourage public-private partnerships.

Uh, yeah, there is no possible that the cop could have known that the signal men used in that bathroom to solicit man on man bathroom sex was being used to solicit man on man bathroom sex.

Why, maybe he was tapping out Vote Republican in Morse Code. You didn't think of that, Officer Looky-Loo, did you? Huh? Did you?

|9.20.07 @ 12:45PM|#

...what are his chances in the next Idaho election in 2008? Slim or none?

Of ccourse, Slim just left town. (groans)

whatEVER|9.20.07 @ 12:46PM|#

|9.20.07 @ 12:47PM|#

This is why libertarians should stop playing footsie with conservatives.

Seitz|9.20.07 @ 1:01PM|#

Can we arrest him for perjury now? He lied when he said he was guilty. I say string the bastard up!

The Raven|9.20.07 @ 1:05PM|#

Nevermore.

|9.20.07 @ 1:10PM|#

Uh, yeah, there is no possible that the cop could have known that the signal men used in that bathroom to solicit man on man bathroom sex was being used to solicit man on man bathroom sex.

joe, perhaps you've read neither the full article nor the comments--the claim here is that the signal that men use to hook up in bathrooms can be a prelude to sex and still not be the solicitation of a criminal act.

|9.20.07 @ 1:14PM|#

Legally he may not have done anything wrong, but the delicious milk chocolatey center of the whole thing is that his hypocrisy is now exposed. Who's up next? Mark Foley? Oh wait... How 'bout Orrin Hatch?

You know what else is at the milk chocolatey center of the whole thing? 39 other men were arrested as part of the sting. How delicious is that heaping helping of entrapment? Also, for all those who were previously explaining that such behavior is only indulged in by a dying generation of closeted men who weren't raised in the current era of openness for homosexuals--two of the guys arrested were 20-somethings who worked in the airport (and who were fired as a result of their arrests).

|9.20.07 @ 1:22PM|#

parse,

I did read the article. Maybe it was a request to Morse Code readers to vote Republican.

But probably not, because there had been a history of men having sex in that bathroom, and the toe-tapping and paper grabbing and stall checking is what they did to set it up.

It takes a devoted session of playing dumb to pretend not to understand what Craig was doing.

I mean, you know this. You even admit that in your VERY NEXT COMMENT, when you talk about "such behavior."

like..duh|9.20.07 @ 1:30PM|#

I'd like to posit that Sen. Craig's record and others like his are part of what fosters the environment that drove the 39 other men to have to solicit sex in a public washroom (either that or it's kinda hot to hook up with unknowns in an airport lav). So the sooner pricks like him become exposed (huh huh) and are hopefully forced to change their positions (huh huh), the sooner we won't need these ridiculous stings.

|9.20.07 @ 1:30PM|#

joe, "such behavior" is cruising restrooms to find sexual partners. Sometimes the ensuing sex takes place on premises--others times it does not. And the question is not what Craig was doing--it is whether arresting someone on the basis of the general communication--"I'm here seeking sex"--ensares those who are engaged in protected speech as well as those soliciting criminal behavior.

Also, if you read the entire brief, you know that soliciting someone to have sex in the restroom is not necessarily solicting someone for criminal behavior. The ACLU seems to be arguing that it's not criminal, per se, to have sex in a public restroom. If you disagree, by all means, make a counterargument.

Keith Y|9.20.07 @ 1:50PM|#

There's an ATM joke in there somewhere

|9.20.07 @ 1:59PM|#

Wasn't he coming to/from Washington? As a legislator wouldn't that make him immune from arrest/prosecution?

Regardless, I would have gone with the "Restless-Leg Syndrome" defense.

|9.20.07 @ 2:00PM|#

In all the schadenfreude over Republican hypocrisy on the homosexual issue, no one seems to notice that the real reason this case is an embarrassment to the Republicans is that they are the people who, for generations, have said things like "The innocent have nothing to fear." and "No one would ever plead guilty to something they didn't do."

This is just the latest case...Nifong, Scooter Libby etc. that has made conservatives eat a few of their tough on crime words.

|9.20.07 @ 2:01PM|#

But probably not, because there had been a history of men having sex in that bathroom, and the toe-tapping and paper grabbing and stall checking is what they did to set it up.

joe, There's been a history of people doing dope in public restrooms as well. What precursory behaviour for that should we outlaw?

Just wondering.

Leaf Providence|9.20.07 @ 2:15PM|#

This is just the latest case...Nifong, Scooter Libby etc. that has made conservatives eat a few of their tough on crime words.

That neocon Nifong got his.Teach him to prosecute based on the racial and sexual hysteria of the Far Right.

ed|9.20.07 @ 2:18PM|#

He's guilty of tacky behavior, which is neither a crime nor free speech. But if I were a spudboy voter from Idaho I'd want him gone. It's clearly conduct unbefitting the office. I can't imagine Craig wanting to stay, but I guess the intoxicating grip of power overwhelms all other senses.

|9.20.07 @ 2:26PM|#

My understanding was that it was the looking through the door crack at the undercover cop before he entered the stall next to him that was the basis of the charge.

So, visually confirming that a stall is occupado is criminal act? Who knew?

|9.20.07 @ 2:49PM|#

So, visually confirming that a stall is occupado is criminal act? Who knew?

I'm not sure, but Craig was confirming for two minutes.

ellipsis|9.20.07 @ 3:18PM|#

Joe,

With all due respect, I understand that this case might be about a hypocrite getting his due. And that's fine. But your defense of the cop and the prosecution seems a little odd. If Barney Frank got arrested in the same sting, how would you feel? And it's not illegal to ask a woman for a blow job if no money is involved. Very tacky, and deserving of a slap across the face. But not illegal.

jimmy|9.20.07 @ 4:35PM|#

yeah, i'm sure there are still backwaters where closeted men are forced to go to public bathrooms or truck stops to find sex. but in liberal minneapolis? i doubt it. i know several out gay men who still indulge in this kind of behavior, and they don't do it cuz they're repressed...they do it out of boredom, risk-taking, etc. not that it should be illegal. it's just very rude behavior, at a time when society is more accepting of gays than ever before, for some guys to turn certain highway rest areas and public parks into x-rated sleaze zones. geez...go to a bar, hook up online, what's so hard about that?

Rhywun|9.20.07 @ 4:42PM|#

"officers may be reluctant to take on such assignments."

What, entrapping innocent people...? Oh, the gay thing.

|9.20.07 @ 5:13PM|#

Are there people who are opposed to government banning smoking from public places but OK with them banning sex from public places?

|9.20.07 @ 5:14PM|#

As I posted in the previous "craig" thread, the shopping bag is the circumstantial evidence sex was going to occur in the stall. In my opinion the shopping bag is what prevents the encounter from being disorderly, as it hides what is happening in the stall.

|9.20.07 @ 5:59PM|#

First, there was no shopping bag involved anywhere in this incident. It was luggage, that frankly would fit nowhere other than in front of the door.

Secondly, the officer can't have it both ways - he claims Craig was looking through the door for two minutes and then claims that he could see him picking at his nails - if he was that close to the door his hands would not have been visible.

And thirdly, everyone has jumped to conclusions based on old rumors. The Idaho Statesman spent 10 months investigating and came up with only one person, that they admit is not credible. And, after three weeks of intense media - not one single person has come forward with a story about this man - despite the fact that they would get a million dollars from Larry Flynt!! Doesn't that tell you anything??

|9.20.07 @ 7:30PM|#

ellispis,

I'd feel that Barney Frank was an idiot, and deserved a disorderly conduct charge.

If the case went to trial, it would be on the cop to prove, beyond a reasonable doubt, the Craig was soliciting the officer to have sex with him in the bathroom stall. I seriously doubt he would have trouble doing this.

thoreau|9.20.07 @ 9:27PM|#

This is why libertarians should stop playing footsie with conservatives.

Warren wins the thread.

Rhywun|9.21.07 @ 12:33AM|#

Are there people who are opposed to government banning smoking from public places but OK with them banning sex from public places?

I'm going to go out on a limb and say, "Yes".

|9.21.07 @ 5:13PM|#

Opps, I heard or read "bag" somewhere, and then at another source heard a discussion of the use of a (shopping) bag to hide ones second set of feet. But I stick by my assertion that use of a bag to hide the feet would eliminate some of the basis for a disorderly conduct charge. And maybe the lack of a "foot hiding device" could be used by the defence as evidence of reduced liklihood the subject intended to act in ways that might be illegal.

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