Foot Tapping and Hand Waving As Free Speech

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.