Foot Tapping and Hand Waving As Free Speech

Jacob Sullum | January 17, 2008

The American Civil Liberties Union is backing Larry Craig's attempt to withdraw the "disorderly conduct" guilty plea that followed his misunderstanding with that undercover cop in the Minneapolis airport restroom. The ACLU notes that the legal provision under which the Republican senator from Idaho pleaded guilty, which criminalizes "offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others," has been ruled unconstitutionally overbroad by the Minnesosta Supreme Court. To avoid violating the First Amendment, the court said, the provision can be applied only to speech that tends to "incite an immediate breach of the peace." Craig's silent overtures to the man in the adjacent stall (assuming that's what his hand and foot movements were) do not fit in that proscribable category, the ACLU says in its brief (PDF).

Even if the government could have proven that Craig was soliciting sex, the brief says, it probably would not have been able to show that he intended to have sex in the restroom. Since having sex in private is not illegal, the ACLU argues, asking someone to have sex in private cannot be illegal. And if the intent was to prevent people from having sex in the restroom, the police could have used less speech-restrictive means that would have been at least as effective as tricking men into asking cops to have sex with them, such as "a posted sign warning that the premises are patrolled." In sum, says the ACLU, "The record shows there is a very significant possibility this defendant pled guilty on the basis of conduct that could not constitutionally have been the basis for a conviction."

After news of Craig's arrest broke last August, there was much commentary about his opposition to gay marriage. Maybe his predicament will cause the senator, who has supported bans on flag burning and on protests at military funerals, to rethink his position on First Amendment issues as well.  

Comments

|1.17.08 @ 12:37PM|#

Protests at funerals are not necessarily protected by the 1st Amendment, due to the fact that the mourners are a captive audience.

|1.17.08 @ 12:38PM|#

Mr. Sullum -
While a good account, I don't appreciate mention of Craig and the word "arouse" in the same sentence.

|1.17.08 @ 12:43PM|#

Maybe his predicament will cause the senator, who has supported bans on flag burning and on protests at military funerals, to rethink his position on First Amendment issues as well.

I don't think I'll hold my breath.

R3vo┘UTION|1.17.08 @ 12:51PM|#

After news of Craig's arrest broke last August, there was much commentary about his opposition to gay marriage.

Why? Did Craig want to marry a dude?

|1.17.08 @ 12:51PM|#

And maybe congress will pass a balanced budget and W will bring the troops back home.

Peter|1.17.08 @ 12:56PM|#

Well, say what you will about Craig, I think this says a lot about the ACLU. While Republicans are running for cover and throwing him under the bus, and liberals are generally using him as the butt of jokes at best and berating him as an insidious avatar of hypocrisy at worse, the ACLU that I always assumed was an appendage of the liberal "establishment" is stepping up in principle. Sure it may be a publicity move, but it shows a steely adherence to those principles of freedom to put aside the baggage that Larry Craig carries in terms of his record.

Jackanapestarian|1.17.08 @ 1:02PM|#

Yeah, once in a while the ACLU gets it right.

|1.17.08 @ 1:09PM|#

I think Craig is a disgusting sex addicted pervert who needs to check himself into some kind of in house treatment center. I don't buy for a minute that Craig's hand signals intended for them to have sex in private. If he wanted to have sex at home, he would have gone to a gay bar or hooked up on the internet. He was clearly soliciting to have sex in the bathroom, which I don't buy as private. The problem here is that the cop nailed him too early. He should have gone in the stall with Craig and let him drop his pants and then nailed him and we wouldn't be having this debate.

|1.17.08 @ 1:11PM|#

He should have gone in the stall with Craig and let him drop his pants and then nailed him and we wouldn't be having this debate.

I think the whole point, John, was that the cop didn't want to nail Craig
;)

|1.17.08 @ 1:14PM|#

I think dropping his pants and bending over inside the bathroom stall would have given enough evidence to belay any free speech considerations. Consummation would not be necessary.

R C Dean|1.17.08 @ 1:19PM|#

To avoid violating the First Amendment, the court said, the provision can be applied only to speech that tends to "incite an immediate breach of the peace."

The cops must have thought they could apply to someone inciting an immediate breach of the pants.

|1.17.08 @ 1:33PM|#

I think the whole point, John, was that the cop didn't want to nail Craig
;)"

You never know. What kind of a cop volunteers for that duty?

Ben|1.17.08 @ 1:34PM|#

At the end of the day Craig is just another slimy, hypocritical member of Congress, so whether he deserves all that he's getting for this particular instance or not, I don't feel bad for him in the slightest.

|1.17.08 @ 1:41PM|#

I agree with John.

We all know what Craig was going for - people weren't complaining about men walking out that bathroom together and getting a cab - but you can't be busting people for "everybody knows."

|1.17.08 @ 1:49PM|#

Some libertarians you guys are. You should be outraged that there was a police man there at all.

And John, if you aren't just taking the p**s, know that cops don't usually volunteer for such duty. It is assigned.

thoreau|1.17.08 @ 1:52PM|#

but you can't be busting people for "everybody knows."

Yep.

|1.17.08 @ 1:53PM|#

Jim Stark -
actually, if you want to get technical about it, we should be outraged that the airport is government funded and a "public place."

LarryA|1.17.08 @ 2:11PM|#

Maybe his predicament will cause the senator, who has supported bans on flag burning and on protests at military funerals, to rethink his position on First Amendment issues as well.

I submit you have to think before you can rethink.

Kolohe|1.17.08 @ 2:20PM|#

dropping his pants and bending over inside the bathroom stall

Isn't this normal behavior? Isn't this pretty much the *required* behavior?


Oh, you mean with two or more people in the stall. Ah, that is something completely different.

Nevermind

Peter|1.17.08 @ 2:21PM|#

Well ... in my opinion, all this shit is subjective anyway. I don't give a crap what kind of code foot signals and hand tapping or whatever the hell is, the recourse to arrest someone based on that alone relies on the arcane and arbitrary. I could care less if it's been observed before that certain physical gestures are de facto invitations to a BJ-fest. It is true that the officer should have waited to get lips on junk, because short of that, no crime was committed. Similarly, if Craig approached the officer, in plainclothes, and said, "Good Sir, I would like to procure some cocaine from you." would the officer have cause to arrest him?

Don't get me wrong, I think Larry Craig is a repressed, hypocritical douche, and that's another discussion, but come on!

|1.17.08 @ 2:35PM|#

If it had gone the way Craig wanted it to: plead guilty, pay the fine and pray that no one ever finds ut about it, he never would have wanted to change his plea. The reason he wants to change his plea now(he has every right to try, btw) is that it made the press.

Paul|1.17.08 @ 2:36PM|#

If he mentioned a specific candidate by name, or waved his hands and tappes his feet within 60 days of an election then it is not free speech.

KipEsquire|1.17.08 @ 2:45PM|#

The ACLU merely refiled its original September 2007 brief from the trial court hearing as an appellate brief. No new news.

The problem, meanwhile, is that none of the ACLU's constitutional arguments -- which have been rightly described by one noted blawger as "profoundly silly" -- have nothing whatsoever to do with the question presented in this appeal: Does Craig have grounds to withdraw his guilty plea?

The time to raise constitutional defenses would have been at trial or upon appeal of a conviction. This isn't that.

|1.17.08 @ 2:58PM|#

What kind of a cop volunteers for that duty?

As someone mentioned I assume he was assigned, which led me ask at the time this happened, what did that poor schmuck do to get himself punished with toilet-duty? I mean seriously, how low on the totem pole do you have to be for that? What, did he run over the police chief's dog?

I can't stand being in a public restroom for more than two minutes, much less hours of sitting on the crapper savoring the malodorous cacophony that is one dude after another backing one out and snapping it off actually hoping that one of them will hit you up to play a little trombone so you can get the hell out of there (if there is a hell, I bet that's pretty damn close to it). I bet they don't tell you about that job when they're recruiting new hires.

And how embarrassing is that during morning roll-call when they're handing out assignments to hear something like, "Officers Jones and Smith, I need you on that mob hit downtown; officer Anderson, you'll be taking down the senior-citizen poker party - take as many men and as much gear as you think you'll need, but be warned, most of these thugs have extensive combat experience from Normandy and Guadalcanal; oh, and Sgt. Karsnia, you'll be staking out the shitter at the airport."

Paul|1.17.08 @ 3:04PM|#

What kind of a cop volunteers for that duty?

Gay cops.

Paul|1.17.08 @ 3:07PM|#

and Sgt. Karsnia, you'll be staking out the shitter at the airport."

Sgt. Karsnia, having "bucked" for this duty all week, gave high-fives all around to his "comrades".

|1.17.08 @ 3:33PM|#

Why the fuck would gay cops want to bust other gay people.

It wasn't too long ago (70s) that cops would go to gay bars and then bust people for simply propositioning them.

Paul|1.17.08 @ 3:50PM|#

Woofy, if you're referring to my post, it was just a snark. In reality, I think it's way more like Brian Courts' post, brilliant humor and wit (from Mr. Courts) aside.

Geotpf|1.17.08 @ 3:57PM|#

The ACLU is wrong on this one, and, amusingly, their own argument proves it. The ACLU says that "that people who have sex in closed stalls in public restrooms ''have a reasonable expectation of privacy.''" (as quoted in the NY Times article linked above).

The senator was charged with two charges and pled guilty to one.

The two charges were a catch all disorderly conduct charge (which he pled guilty to)-and PEEPING. Namely, before Craig did the foot tapping, he peered through the crack in the stall to "check out" the officer, who was (tada!) in an area where somebody had a reasonable expectation of privacy. No different from somebody hiding in the bushes to attempt to look through the bathroom window of a woman getting out of the shower.

Here's the actual charges:

http://www.thesmokinggun.com/archive/years/2007/0828071craig6.html

If he is able to withdraw his guilty plea on the disorderly conduct charge, he almost certainly will be convicted on the peeping charge-which is the more serious charge of the two.

|1.17.08 @ 4:06PM|#

Geotpf,

Thanks for bringing the peeping charge up.

Back when this was front page stuff, everyone kept getting distracted about public space / private space and expectations of of privacy, no verbal solicitation, etc - and aparently they still do, and I kept trying to remind folks about the peeping charge but was usually ignored.

Paul|1.17.08 @ 4:22PM|#

All things being equal, how in gods name can they "prove" he peeped?

Officer to Judge: He peeped! He totally peeped!

Craig: Your honor, there was no peep!

Officer: Oh, there was a peep. I definitely saw a peep!

Craig: You peeped my peep?

Officer: I thought you said you didn't peep!

Craig: I didn't but now you said you peeped at me! The "Craig" doesn't peep! Everyone knows you shouldn't peep!

Geotpf|1.17.08 @ 4:26PM|#

Paul-the officer can testify that he saw Craig stare at him through the crack in the stall. The technical name for it was "Interference with Privacy", although the four letter shorthand code for it was, in fact, PEEP.

Thinking about it further, the Disorderly Conduct charge was probably technically a lesser and included charge of the actual peeping charge, like manslaughter is to murder. So Craig, in effect, pled to the peeping charge already-and the ACLU just directly supported the state's case.

|1.17.08 @ 4:33PM|#

"Gay cops."

"end result", "free gift", "future plans", "hot water heater", "unconfirmed rumor", "killed him dead", "past history", "safe haven", "previous experience" etc. Wiki.

|1.17.08 @ 4:36PM|#

Paul,

Per the officers testimony, he claimed that Craig was looking at him through the door crack for several minutes.

Paul|1.17.08 @ 4:42PM|#

Per the officers testimony, he claimed that Craig was looking at him through the door crack for several minutes.

Holy crapshait! Ok, that's a peep.

|1.17.08 @ 5:04PM|#

"Per the officers testimony, he claimed that Craig was looking at him through the door crack for several minutes."

God, what a dirtbag.

R C Dean|1.17.08 @ 5:34PM|#

God, what a dirtbag.

You're gonna have to be more specific, John.

Or maybe not.

Syd|1.17.08 @ 5:54PM|#

Everyone knows that people who peep will grow up to chirp and occasionally caw or quack.

|1.17.08 @ 7:18PM|#

Bravo ACLU!

|1.17.08 @ 8:08PM|#

"""I think dropping his pants and bending over inside the bathroom stall would have given enough evidence to belay any free speech considerations."""

The problem for Craig is that he pled guilty. If he was found guilty he might have grounds for an appeal.

Once you plead guilty and a reasonable punishment is handed down, it's should be a done deal. The only exception should be incompetent at time of plea. He was allowed to challenge his competency at a hearing and was ruled competent.