ACLU Files Amicus Brief in Support of Larry Craig

The ACLU has filed a "friend of court" brief with the Minnesota Court considering Sen. Larry Craig's motion to withdraw his guilty plea over his bathroom sting arrest. You can read the brief here. The ACLU says (press release will be available here later today):

“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.”

After noting that Sen. Craig has not always been a friend to civil liberties, the ACLU says that doesn't matter and explains its legal reasoning:


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. When free speech rights come into play, police enforcement actions must be “carefully crafted” so that they don’t unnecessarily ensnare people who are engaging in constitutionally protected speech.

The secret sting operation used by the police to arrest Senator Craig was not “carefully crafted” to avoid ensnaring innocent speech, says the ACLU. Alternatively, posting a sign that the restroom is being monitored is an effective means of deterring public sex without risking trampling on free speech rights and illegally trapping someone who might not intend to have sex in public in the first place. In fact, many law enforcement agencies, including the Minneapolis Police Department and the U.S. Department of Justice, recommend signs rather than secret sting operations as enforcement mechanisms.

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    Wrong argument, wrong kind of defendant (5.00 / 1) (#15)
    by Beldar on Mon Sep 17, 2007 at 09:05:22 PM EST
    There are two big problems with this brief:  

    First, these arguments have all been waived by Craig's failure to make them before pleading guilty.  They don't show that his plea was coerced or uninformed.  And establishing that there is a "basis in fact" for accepting a plea pursuant to a plea bargain doesn't require the court to raise, sua sponte, and then reject, every conceivable argument as to why the statute defining the crime might be unconstitutional as applied.  Nothing in this brief, in other words, applies to setting the plea aside.

    Secondly, the ACLU is making arguments that Craig emphatically will deny apply to him.  He emphatically denies that he was engaged in any kind of conduct-as-speech that's protected by the First Amendment.  That would require him to admit that he was cruising for sex.  Instead, his factual argument is that he was only looking for an empty stall, that his foot tapping had no meaning, that his foot rubbing was an accident, that he was picking up a piece of paper from the floor.

    With due respect, this was a waste of the ACLU's time and resources.

    hahhahaha (none / 0) (#16)
    by squeaky on Mon Sep 17, 2007 at 09:10:16 PM EST
    That is very funny. Larry Craig is the posterchild for the ACLU. It is free advertisment and quite high quality at that.

    ACLU defends Libs! (none / 0) (#1)
    by TomStewart on Mon Sep 17, 2007 at 11:53:08 AM EST
    And gays! See, we told you they were anti-American values! Next they'll come for your guns and then take your kids and hand them over to child molesters. It's the liberal way.

    Glad to see the ACLU stepping in (and good them, them to see past the person and fight for the principle). I don't think Craig should resign either, (I don't think I saw any liberal dems calling for his resignation) he should stay and fight. He should also tell the truth and come out. It would only help his case, if you ask me.

    And when, exactly, did Larry Craig become (none / 0) (#2)
    by scribe on Mon Sep 17, 2007 at 11:57:23 AM EST
    a liberal?

    Short answer:  never.

    He's a rock-ribbed authoritarian conservative through and through.  Carried their water for years.

    Calling him a liberal is of a piece with FauxNoise relabelling Republicans who've gone off the reservation as "Democrat"s.

    Uh, who's calling Craig (none / 0) (#7)
    by TomStewart on Mon Sep 17, 2007 at 12:22:31 PM EST
    A liberal?

    sounded like you were.... (none / 0) (#8)
    by scribe on Mon Sep 17, 2007 at 12:33:56 PM EST
    Nope (none / 0) (#14)
    by TomStewart on Mon Sep 17, 2007 at 08:30:45 PM EST
    You're sarcasm detector must be on the blink.

    good luck (none / 0) (#3)
    by eric on Mon Sep 17, 2007 at 11:58:13 AM EST
    Sounds pretty irrelevent to the issue at hand - whether Craig should be able to withdraw his plea.

    I would add that if Minnesota's disorderly conduct statute is unconstitutional, then there are hundreds of thousands of people in Minnesota that are going to be really happy.

    not if you read the brief all the way through (none / 0) (#5)
    by scribe on Mon Sep 17, 2007 at 12:10:40 PM EST
    at the end, it makes the point that
    constitutionally, he could not have been convicted, so the interests of justice require allowing his guilty plea to be withdrawn (can't plead guilty to conduct which is not a crime....) .

    unconstitutional as applied (none / 0) (#21)
    by txpublicdefender on Tue Sep 18, 2007 at 01:19:54 PM EST
    They're not arguing that the entire statute is unconstitutional.  They're arguing that a constitutional interpretation of the statute cannot include his conduct, even taking the allegations of the prosecutor as true.  

    I still think the procedural posture is a problem.  You can choose to waive constitutional objections to the charge by plea bargain.  It happens every time someone agrees to drop an illegal search issue in exchange for a plea to a lesser charge.  

    But, I wholly agree with the ACLU's analysis of the legal issue.  Soliciting someone in a public place to have sex cannot be a crime unless you are specifically soliciting to have the sex in public.  I never understood what it was that Craig did that was a crime.  Unfortunately, he pled guilty.


    Posting signs (none / 0) (#4)
    by magster on Mon Sep 17, 2007 at 12:10:00 PM EST
    Does anyone remember the sign in the movie "Airplane" with the silohuette of two people having sex with the red cross-out circle through it, next to the no smoking symbol?

    not offhand, (none / 0) (#6)
    by scribe on Mon Sep 17, 2007 at 12:12:33 PM EST
    but I do recall having to use a toilet in a municipal park which had a sign posted which read:  "Please do not dispose of condoms in urinal"

    Me thinks (none / 0) (#9)
    by Deconstructionist on Mon Sep 17, 2007 at 12:47:00 PM EST
      The ACLU likely is more interested in a) getting some publicity and b) the fun of putting itself on Craig's side without his likely desire. High in "karma points" perhaps but likely meaningless as tot he proceedings.

      That's a pretty poor piece of work and I've never heard of any court allowing an amicus brief to be filed to a motion in an inferior court.

    It's always nice to be a friend of the court (none / 0) (#17)
    by Beldar on Mon Sep 17, 2007 at 10:15:47 PM EST
    I agree with you about the brief, Deconstructionist. But I had one occasion on which I was hired to appear as a "friend of the court" in a trial court proceeding, about which I blogged here.

    That's an amusing anectdote (none / 0) (#20)
    by Deconstructionist on Tue Sep 18, 2007 at 07:20:05 AM EST
      but even there it does not sound as if you were actually granted leave to file as a amicus. Your role appears to have been to let the judge know Rice cared about the case and you accomplished that but as a "chum" you would not have had standing to file a memorandum of law to be docketed in the matter and considered by the court. I've also attended court as a representative of a person who was not a party  but had an interest in the matter but that's something other thasn being an amicus curiae.

      In Craig's case, it seems the ACLU is publicizing its brief without having asked for or having been granted leave to file it with the court. I'm assuming in your matter, Rice wasn't issuing press releases touting its legal work in the case.



    Oh for sure (none / 0) (#19)
    by manys on Tue Sep 18, 2007 at 01:35:19 AM EST
    If there's one thing people can say about the ACLU, it's that they do what they do for fun.

    This is why I continue to support ACLU (none / 0) (#10)
    by Ellie on Mon Sep 17, 2007 at 01:31:16 PM EST
    Keeping rights and resources neutral (for unimpeded, fair access to all) is paramount when morality can change quickly, for brief or long periods, because of changing circumstances.

    As much as I hate disagreeing with Romero's suggestions (or anyone who has that nice a smile), he's off base about the signage and -- UGH! -- a uniformed police presence.

    A public restroom isn't a place for public sex, particularly when the solicitation codes and practices of the toilet trade involve invading the necessarily (and temporarily) private space (in a public place) of a locked bathroom stall. The community shouldn't have to expend resources on signage or authoritarian enforcement of common-sense etiquette.

    If the toilet trade is so abundant at the locale that Craig chose that a uniformed cop would be necessary, than Craig's story becomes even more hootingly ridiculous than it already is. If the trade is so rare and arcane that a sting is unwarranted then the signs wouldn't be necessary and stings called for based on the increased number of complaints.

    Approaching this from an etiquette standpoint bending over backwards to excuse extremes, why not post signs asking people to refrain from upending crippled children in the rush to have one's whiz? Or a notice telling pet owners not to submerge critters' heads in the toilets in hot weather cause it could damage both critter and toilet, and impede other users' access to clean, hairball-free facilities?

    In passing, WTF is with people?

    On a lighter note... (none / 0) (#11)
    by eric on Mon Sep 17, 2007 at 01:42:27 PM EST
    It's obvious (none / 0) (#12)
    by Pancho on Mon Sep 17, 2007 at 02:33:00 PM EST

    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.

    One of my earliest memories,from the age of about 3 was of a cartoon saying " mother never told me not to paint the baby", the message sunk into my little three year old brain that you need to be able to figure out certain things without being told.

    This same standard that Romero is preaching could be applied to parking tickets. Are cities really trying to curb illegal parking or are they trying to raise revenue? Does it matter legally?

    When I take my little daughters to a puiblic restroom, do I have to wonder what I'm going to run into?

    I wonder if Larry Craig will be the (none / 0) (#13)
    by JSN on Mon Sep 17, 2007 at 03:03:05 PM EST
    invited speaker at our next ACLU banquet?

    Larry Craig innocent, but should quit anyway (none / 0) (#18)
    by MichiganMan on Mon Sep 17, 2007 at 11:34:02 PM EST
    1.  A man buys a woman a drink.  Innocent?  Legally, yes.
    2.  A man offers to pay a woman for sex.  Innocent?  Legally, no.
    3.  A man tries to meet man a in a bar.  Innocent?  I hope so (although I'm not gay)
    4.  A man tries to meet a man in a men's room.  Guilty?  I don't see it.

    In cases 1,2, & 4 the man is probably looking for sex (and maybe case 3).

    I'm not a lawyer but I think that a lawmaker should know the law enough to know that you don't have to negotiate your right to free speech.  By pleading guilty, LC demonstrated that he didn't understand this concept.