The ACLU entered the Larry Craig fray today by submitting an amicus brief to the Minnesota District Court urging it to allow the scandal-plagued politician to withdraw his guilty plea because the secret sting operation used to arrest him was likely unconstitutional.
“The real motive behind secret sting operations like the one that resulted in Senator Craig’s arrest is not to stop people from inappropriate activity. It is to make as many arrests as possible – arrests that sometimes unconstitutionally trap innocent people,” said Anthony Romero, Executive Director of the ACLU. “If the police really want to stop people from having sex in public bathrooms, they should put up a sign banning sex in the restroom and send in a uniformed officer to patrol periodically. That works.” (source)
In its brief, the ACLU argues that the government can arrest people for soliciting public sex only if it can show beyond doubt that the sex was to occur in public. Solicitation for private sex, regardless if it occurs in a bar or a restroom, is protected speech under the First Amendment. (source)
The ACLU really does have a point here. Lets presume that Larry Craig’s actions, tapping his foot, waving his hand, whatever he did, were all simply non-verbal cues stating “hey buddy, what say you and me go do the nasty?” How is that illegal? If that is illegal, then “Hey baby, can I buy you a drink?” is illegal too, isn’t it? What should the penalty be for “that dress looks great on you, but it would look much better crumpled on the floor next to my bed?”
It sure is going to be difficult to be single if every pick up line is now likely to get me arrested for disorderly conduct. Maybe my mom is right, and its time for me to get married. Any takers? (NOTE: This is in no way a solicitation for public sex. Any sex that may result from this invitation will take place in private).
I am proud to be an ACLU member in general, but seeing them step forward to help Larry Craig, who has by all measures been no more friendly to civil liberties than McCarthy shows the moral backbone of the Union. I’m doubly proud today.
update Jon Katz’ Underdog Blog post on this story.