Your Bathroom Antics Are Constitutionally Protected
January 9, 2008
Larry Craig’s lawyers are getting a little desperate. Since most of the normally useful defenses to the criminal act were probably blown with the guilty plea he registered shortly after getting hauled out of the Minneapolis Airport for having a wide stance, he’s had to get creative.
So he’s arguing that Larry Craigs toe-tappin’ is Constitutionally protected speech.
Craig was arrested by an undercover police officer at the Minneapolis airport on June 11 as part of a broader investigation into men soliciting sex in airport restrooms. According to the officer who made the arrest, Craig tapped his feet (in the now infamous “wide stanceâ€) and swiped his hand along a stall divider in a suggestive manner.
In the brief, Craig’s legal team argues that the senator’s actions were not criminal because Minnesota’s disorderly conduct law requires that conduct alarm or anger “others,†while Craig’s actions only affected a single individual — the officer who made the arrest.
The brief also argues that Craig’s hand gestures are a form of constitutionally protected speech.
Airport authorities, however, remain skeptical.
Believe it or not, both arguments are pretty solid. If Craig’s behavior didn’t fall under the statute he was charged with, then he shouldn’t have been charged in the first place, thus negating all of the post-arrest actions, such as showing up to court in his spare time and without a lawyer and entering a guilty plea. This teensy little loophole (that it had to be disorderly or disturbing to more than one person) leaves the argument open.
The second argument is even saucier. According to the lawyers, Craig’s movement in his bathroom stall was “protected speech” or “protected conduct” under the First Amendment. Since we can probably safely assume that the bathroom at the airport is a pretty…um…public forum, basically any and all speech is permitted save for that which butts up (sorry) against a “time, place or manner restriction” which are basically what they seem to be, rules that govern the time, place and manner in which people may speak. Its highly unlikely there are any posted rules which govern how you can tap your feet, move your hands or how wide your stance can be inside a bathroom stall until you get busted by the cops for being lewd.
Of course, its not like he was making any serious political statements, but honestly that doesn’t really matter. In a sense, this is a more perverted (sorry, again) argument that Larry has the right to privacy in what bizarre behavior he chooses to engage in in the mens room, probably protected by that same conglomeration of amendments that produced that paragon of legal virtue, the right to reproductive freedom. Of course, we don’t know exactly what he was doing with his hands, so any assumptions regarding the constitutionality of them would be purely presumptuous.
Sorry.
Posted in Uncategorized
January 9th, 2008 at 7:08 pm
How would a decision in his favor affect those similarly charged?
January 9th, 2008 at 7:53 pm
I think, initially, it would protect only those arrested within the jurisdiction of the MN court. If you’re in trouble, we’ll have to launch a parallel suit in your home court…or wait until the Supreme Court decides, but that could be a while. It could cut into your social life significantly.
January 9th, 2008 at 10:56 pm
That’s good lawyering… I’d have framed the question this way: If Senator Craig had done this in a bar, would it have been lewd?