Constitutional Foot Tapping

by Jon Mandle on October 27, 2007

Larry Craig, who has withdrawn his intention to withdraw from the Senate and now intends to finish his term, is trying to withdraw his guilty plea for disorderly conduct. According to this AP story, his lawyers intend to argue: 1. that “Minnesota’s disorderly conduct law is unconstitutional as it applies to his conviction in a bathroom sex sting”; 2. that “the judge erred by not allowing Craig to withdraw his plea”; and 3. that “the judge who sentenced Craig to a fine and probation never signed anything saying he accepted the guilty plea.” These last two seem pretty trivial, but the first point is serious. The AP story is never exactly explicit concerning the constitutional issues at stake, but it helpfully points out that “an earlier friend-of-the-court filing by the American Civil Liberties Union argued that Craig’s foot-tapping and hand gesture under a stall divider at the Minneapolis airport are protected by the First Amendment.” That sure seems right to me, but is that actually the argument that Craig is going to make? Recall that his explanation at the time [pdf] and (as far as I know) since has been that there was absolutely, positively, really and truly no speech involved – he just happens to have a “wide stance when going to the bathroom” and that he “reached down with his right hand to pick up a piece of paper that was on the floor.”



bi 10.27.07 at 8:50 pm

But if the gesture gives aid and comfort to terrorists, then it’s not protected speech, is it?


Matt 10.27.07 at 9:04 pm

He might well not have been guilty of the “disorderly conduct” charge or maybe any of the charges if he wanted to go to court. The trouble, though, is that this sort of thing is _exactly_ what happens in plea bargain deals _all the time._ The large majority of convictions in the US are on guilty pleas, many plead down like this in a form of negotiation. Now, maybe this isn’t ideal, but without _massive_ changes in our criminal justice system (probably ones so big that even those who think it’s quite bad now would not want to make all of them) this sort of thing is both normal and fine. Craig is really trying to cheat here. He didn’t want to go to court on the charge he first faced (even though he probably would have won since the cop probably acted too soon.) So, he plead down to something lower in a quite rational bargain. Now he’s trying to get out of that on the grounds that he wasn’t guilty of it. But he’s a rational person and an adult and agreed to it. Such pleas should almost always stand, absent extreme circumstances, and there just are not any here. We ought have no sympathy for him at all.


Seth Finkelstein 10.27.07 at 9:08 pm

In legal pleading, they can make arguments that are roughly “Larry Craig wasn’t soliticing for sex, but even if he was soliticing for sex, that’s OK anyway.”

I’d guess the argument they’re thinking has the best chance is “Larry Craig wasn’t soliticing for sex, and the vague and broad criteria used to say he was doing so just shows how much the law lets anyone be arrested for capricious reasons”.

Sometimes it’s important to distinguish between what they think will actually work, versus what they put in just for completeness and to give it a try – these can contradict one another, logical consistency is not required between all arguments.

Disclaimer: I am not a lawyer.


Jacob T. Levy 10.27.07 at 9:30 pm

Seth’s got it. Legal arguments in the alternative have no problem with saying “I didn’t do it, and even if I had the law against it is unconstitutional.”

That kind of thing can be a problem in contexts like sentencing or parole, where it’s more important to be seen to be sticking to a single story, but at this stage, of course that’s what his lawyers should be arguing.


Matt 10.27.07 at 9:40 pm

But he’s past that point, Jacob. He’s already agreed that he was guilty and now is trying to have the plea set aside. That should be allowed only in rare cases, ones where there is manifest injustice. As weird as it might seem, not actually being guilty of what one pleads to doesn’t fit that bill in most cases, since that agreement is about trying to avoid something you don’t want to face and so accepting something else. Unless we want to say that pretty much all of our legal system is wrong in its practice then Craig has no case at all, nor should he.


Jon Mandle 10.27.07 at 9:46 pm

Matt makes a good point. I had forgotten that the arrest was for lewd conduct and the plea agreement was for the lesser charge of disorderly conduct.

No surprise that his lawyers will make whatever arguments they think might work – even if they contradict one another. But it still seems to me that “even if I had, the law against it is unconstitutional” would be a significant change to his position.


abb1 10.27.07 at 10:05 pm

Can’t he argue, though, that the “lewd conduct” charge is just as unconstitutional under the circumstances as “disorderly conduct”? In which case the “plea bargain deal” objection doesn’t seem very convincing.


Seth Finkelstein 10.27.07 at 10:09 pm

abb1, right – I suspect the arguments can be boiled down into “Whatever Larry Craig may or may not have had in mind, any of the charges he was arrested under OR pled to, are impermissibly vague when applied to what he actually did”.


Chuchundra 10.27.07 at 10:33 pm

I think the ACLU’s point is kinda shaky. Wasn’t Craig’s original arrest for soliciting sex in a public bathroom? How can soliciting a crime be protected speech?

Am I missing something here?


Keith M Ellis 10.27.07 at 11:07 pm

“Wasn’t Craig’s original arrest for soliciting sex in a public bathroom? How can soliciting a crime be protected speech?”

Well, in the first place, I think that exemptions from protected speech of speech which is crime-related is a pretty gray area and in the US tends to lean toward protecting speech. I’m pretty sure that there’s no broad law prohibiting speech which solicits crime, in general. For example, people are charged specifically for soliciting prostitution—there’s a specific law against that. Is there a specific law against soliciting public sex? I doubt it.

Second, these bathroom solicitations are obviously sex solicitations, but are they obviously specifically solicitations for public sex?

My argument with all those who are sanguine about the Craig arrest is that it amounts to an arrest for solicitation of sex in a public place that may or may not occur in a public place but that enforcement of the relevant laws here is targeted only against homosexuals and not heterosexuals. Heterosexuals have public sex, too, and there are a few places where this isn’t infrequent. And while the police in those places may have occasional sweeps to catch people having sex, what they dont do and have never done is to arrest people who are merely soliciting sex from other straight people, and they most certainly have not and do not set up stings with undercover police intended to catch straight people soliciting sex from other straight people.

And if the police were to attempt enforcement in these ways against straight people on the same scale as they do against gays, then you can bet your last dollar that there would be a public outcry against it. And more concern about whether or not asking someone for sex in a public place is protected speech.


Bloix 10.27.07 at 11:18 pm

He can’t argue anything. This case is over. It is a dead parrot. That is why he is arguing #2 and #3 – he needs to get the case re-opened in order to argue #1 and to do that he has to show that there is something wrong with his voluntary guilty plea. But as the trial judge found there’s nothing wrong with his guilty plea. This isn’t about getting the ruling overturned, it’s a bunch of handwaving so he can later say, when he’s running for Senate again, that he wasn’t really guilty but the evil judges made him do it.


Patrick 10.27.07 at 11:24 pm

I haven’t read the ACLU brief, but here’s my guess.

They’re arguing that the law was unconstitutional “as it was applied.” That means that the law itself might be constitutional, but it was used in an unconstitutional manner.

In the US, its legal to proposition someone for sex. Its illegal to proposition someone for sex for money, or for public sex, or any other kind of criminal act. But noncriminal sex, you can walk right up to anyone you want and ask them for it.

You can’t keep bugging them about it, you might get thrown out of whatever bar you’re in, and the cop that arrests you afterwards might not believe you when you tell him you’ve got the right to proposition any woman you want any time you want, but you can do it.

The ACLU could be arguing that Craig’s conduct was “speech” in that it communicated a sexual advance to the cop. They could further argue that many bathroom hookups involve leaving and going to a hotel. That would be completely legal.

So in essence, they’d argue that Craig’s conduct was speech, that it very well could have been legal speech, and that the disorderly conduct law, as applied here, squelched that speech.

The only problem for Craig is that, from a public relations perspective, a lengthy conversation about “If I did proposition that cop in that bathroom, here’s how I did it” isn’t very politic.


PersonFromPorlock 10.28.07 at 1:14 am

It seems to me that any “plea bargain” is reversable as a product of coercion. If I point a gun at you and say “your money or your life,” and you give me your money, I don’t believe I’d get very far later claiming that you ‘agreed’ to the transaction.


bi 10.28.07 at 4:22 am

Keith M Ellis:

I don’t think many people would object to outlawing the solicitation of straight sex by means of a wide stance. That definitely goes into the “lewd” category, straight or not.


parse 10.28.07 at 2:23 pm

The ACLU could be arguing that Craig’s conduct was “speech” in that it communicated a sexual advance to the cop. They could further argue that many bathroom hookups involve leaving and going to a hotel.

I’m not sure the further argument–that the sex would only take place after leaving the restroom–would be necessary. According to Sodomy Laws In the United States

Minnesota was the first state after California to be confronted with the issue of the privacy rights of sex in a public restroom enclosed stall. By a single-vote margin, the Minnesota Supreme Court followed the California precedent, thus making sex in a restroom legal. . .


c.l. ball 10.28.07 at 2:55 pm

#10 gets it partially right

Second, these bathroom solicitations are obviously sex solicitations, but are they obviously specifically solicitations for public sex?

It is not “obvious”; but the real issue is whether sex would occur in the public restroom or privately elsewhere. There is no evidence of the former, which is illegal or of the latter, which is not. Regardless of Craig’s plea, the use of the disorderly conduct law to prosecute legal solicitation (public soliciting for legal, private sex) is a 1st amendment violation.

Minnesota still has its sodomy statute on the books — it is partner-neutral. (There are still adultery and fornication statutes in the code. If you’re not married, you can’t have sex legally, and you can only have sex legally w/ the person that you are married to.) Lawrence v. Texas invalidates the sodomy statute, and an earlier MN court ruling that went unchallenged by the state AG invalidated the statute for Hennepin county, where the airport is located, on the same grounds as Lawrence.

That said, I think that reasonable people should tread carefully in this matter. As in the Foley case (the pages were all legally able to consent in DC), there is a potential that showing up Craig’s ostensible hypocrisy on gay rights issue reinforces the right’s disparagement of homosexuality.


Joe 10.28.07 at 7:09 pm

@ c.l. ball: that would imply that undercover cops could stake out pickup joints, and bust anyone who makes a widely recognized gesture that indicates a sexual solicitation: blow in her ear, go to jail.


c.l. ball 10.29.07 at 3:35 pm

I was saying that police cannot arrest someone for soliciting legal sex, and there is no probable cause to believe that foot-tapping solicits illegal sex (i.e., sex in public) any more than ear-blowing at a bar does.


LizardBreath 10.29.07 at 5:05 pm

there is no probable cause to believe that foot-tapping solicits illegal sex (i.e., sex in public) any more than ear-blowing at a bar does.

I’ve seen this argument made, and it seems (based on what I know of the practices involved) obviously false to me. As I understand it, there is a reasonably widespread practice among some gay men of soliciting sex in public bathrooms that then occurs in public bathrooms — there is no such practice of picking up men in public bathrooms to then go have sex someplace private. The police aren’t required to put all knowledge of the world out of their heads when assessing probable cause: someone muttering “Smoke, smoke” to passers-by has given rise to probable cause to believe he’s selling pot, despite the fact that his words are ambiguous enough to apply to tobacco as well.

(Now, I could be wrong — maybe it is as common to meet in a public bathroom and then go elsewhere for sex as it is to meet and have sex in the bathroom. But if I’m right about that, the police are entitled to know the same thing and form beliefs on that basis.)


Roy Belmont 10.30.07 at 1:21 am

Most observers confronting the Craig story aren’t going to recognize their own sexual discomfort at work. His hypocrisy is another issue entirely. If hypocrisy is going to become an actionable offense we won’t have a government.
One of the features of toilet stalls in public bathrooms is privacy. It’s publicly accessible but it’s a private place, or relatively somewhat so, visually, if not aurally or olfactorily. The still-unexamined and pretty much ultimate taboo here is the sex itself, and homosexual sex is still far more taboo than heterosexual sex is.
We eat in public; in some other countries at least people bathe naked in public; lovers kiss in public which is endearing as long as it’s clothed and relatively chaste; our dogs pee and shit and have sex; we hawk loogies in the gutter; we talk on cell phones; we do all kinds of private things in public. But everyone’s so uncomfortable with sex it feels natural to be censorious. It isn’t, it’s cultural, out of a culture that until quite recently forbade many things we now see were not immoral at all, like racially mixed marriage, or living together outside marriage, or being homosexual.
Women breast-feeding their infants out in public are still often subject to denunciation and censure. If that isn’t pathology nothing is.
A lot of the negative response to sex, as well as the prurient fascination with it, is remnant cultural taboo filtered through the violent demands for change that began in the 60’s, and it’s still so solidly in place most people can’t see that as a central part of the problem.
Using a stall next to someone who’s loudly and massively flatulent or explosively diarrhetic, with all the accompanying smells and noises, is part of the deal of using public restrooms.
Why the squeamish and delicate often choose not to.
The sounds of fellatio from the next stall over might be discomfiting, even horribly disgusting, but there’s no real moral reason why they should be criminalized. Listening and smelling someone else taking a shit from three or four feet away can be pretty disgusting too but we get through it, we do our own business and go on.


c.l. ball 10.30.07 at 3:30 am

Re #19

How do we know that gay men foot-tapping in bathrooms are more likely to have sex in the bathroom than in private than sex-signalers at a bar are? This is a paragon of sampling on the dependent variable — those who have sex in bathrooms after foot-tapping v. those who foot-tap. Police rarely conduct studies of the behavior.

Those who foot-tap and leave are unknown; likewise, those who ear-blow and leave are unknown, too. Heterosexuals are arrested for sex in cars and bathrooms, too. But police don’t stake-out parking lots looking for heterosexual sex very often, and they certainly don’t arrest heterosexuals for signaling for sex.

You can say “smoke, smoke” but is anyone convicted without possessing crack or weed?


LizardBreath 10.30.07 at 2:12 pm

How do we know that gay men foot-tapping in bathrooms are more likely to have sex in the bathroom than in private than sex-signalers at a bar are?

Depends on who ‘we’ are. If we are gay men who participate in the practice of soliciting sex through foot-tapping in public bathrooms, we know by experience. If we are, we could ask people in that category. In public discussion of the Larry Craig affair, I haven’t seen anyone purporting to have personal knowledge of the practice suggesting that sex solicited in a bathroom was likely to occur in a private place elsewhere.

And honestly, think about it. What’s the point of soliciting sex in a bathroom other than the fact that it’s the most privacy available in a public place? If the point were just to solicit sex, there’s no reason not to do it out in the open, as people of all sexual preferences do in bars. In Larry Craig’s particular case, he was in an airport, which suggests that a nearby private place was very unlikely to have been available to any partner he successfully contacted in the bathroom.

(I do think that if Craig had fought the charges, rather than pleading guilty, he would have had a very strong argument that he had been arrested before actually committing any crime — that the actions Craig performed before the cop revealed himself were insufficient to constitute disorderly or lewd conduct. But that’s very different from saying the cop was making an unwarranted assumption in forming the belief that Craig intended to engage in sexual activity in the restroom.)

Comments on this entry are closed.