In a manner of speaking, Senator Larry Craig got caught with his pants down in the men’s room of the Minneapolis airport on June 11.
Y’all know that he pled guilty and was fined for disorderly conduct when he allegedly signaled to an undercover policeman that he wanted to engage in sexual activity.
Here’s the interesting part. Craig wants to withdraw his guilty plea. He says that he was the victim of a “sting” operation by the police.
He has a point. Since when is it illegal in this country to ask someone if they want to have sex? It happens every day: in bars, restaurants, hotels, stores, on campuses, in airplanes and, yes, in airports.
Craig did NOT engage in public sex. He only “signaled” that he might be interested.
Like it or not, solicitation for private sex is protected speech under the First Amendment.
You can guess where this is going, can’t you?
Yep. The ACLU has filed a Friend-Of-The-Court brief asking that Senator Craig be permitted to withdraw his guilty plea because the sting operation that was used to arrest him was probably unconstitutional.
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.
According to 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.”
There’s no word yet from Senator Craig on how he feels about the ACLU entering the case. The hearing is scheduled for September 26.
Interestingly enough, the Department of Justice has prepared a training manual for local police departments on how to deal with “Illicit Sexual Activity In Public Places.” Would you like to read it?