Election Central | Talking Points Memo | Craig To Argue Foot-Tapping A Constitutional Right

Craig To Argue Foot-Tapping A Constitutional Right

By Eric Kleefeld - October 26, 2007, 3:04PM

Larry Craig is now taking yet another path in his quest to legally absolve himself: He is legally arguing that the law under which he was arrested and subsequently pled guilty to disorderly conduct in a men's room is in fact unconstitutional.

This puts Craig with an odd ally for a conservative Republican: The ACLU, who argued in an amicus brief that foot-tapping and hand gestures alone, absent a real sexual act, were protected by the First Amendment.

Craig's lawyers will file their briefs by mid-December, and have asked to make oral arguments before the appeals court in St. Paul.

Comments (1996)

Daniel wrote on October 26, 2007 3:10 PM:

This is what keeps Idaho in the picture. Craig stays on the public stage -- and this is the best scenario for Senate Democrats.

wisconsintransplant wrote on October 26, 2007 3:17 PM:

There is a LOT to be said against Craig's record and his hypocrisy. But, you know, he and the ACLU are right about this. His alleged acts should not be seen as criminal ones.

Anonymous wrote on October 26, 2007 3:20 PM:

Finally Craig is standing up for principles.. with a wide stance, but still standing!

Jeffrey Cook wrote on October 26, 2007 3:23 PM:

Repubs using the ACLU!!! As a real member I love it. Did the author really have to use the term "oral arguments"?

stemper wrote on October 26, 2007 3:23 PM:

Ah, Larry - the gift that keeps on giving, from the Gay Old Party...

David in NY wrote on October 26, 2007 3:25 PM:

Ah, what makes those conservatives suddenly become fans of the Bill of Rights? Getting caught!

And by the way, I don't think Craig bothered to raise the constitutional issue in the lower court, did he? Could hurt him here, if not.

fafner1 wrote on October 26, 2007 3:30 PM:

The Minnesota cops were giving Craig a break, writing him up on a non-sexual misdemeanor rather than letting the situation develop and hitting him with a sex charge. Why? Probably because they were more interested in stopping the sex in public bathrooms than throwing people in jail.

Michael wrote on October 26, 2007 3:30 PM:

After this episode, a trip to the mens room will never be the same again. It really is too funny. I am so self conscious to make sure that I don't "give the signal" by accident. Look out for inadvertent foot tapping or bending over to pick-up tp. It's just way too funny.

Anonymous wrote on October 26, 2007 3:32 PM:

Guess he shouldn't have pled guilty in the first place if he thought it was unconstitutional...

Jake D. wrote on October 26, 2007 3:36 PM:

Senator Craig obviously thought that pleading guilty would keep the incident out of the press -- regardless of whether it occurred to him the law was unconstitutional right then and there -- how about we simply get rid of all sexual deviants in Congress?

714Day wrote on October 26, 2007 3:36 PM:

Larry eclipses the spud yet again.
Gee, Idaho has two celebrities loaded with starch that are best stored in a cool, dry, place; if not, they start to decompose.

Schatz wrote on October 26, 2007 3:44 PM:

RE: David in NY.
No, not raising the constitutional argument below should not hinder Sen. Craig. Constitutional issues can be raised sua sponte, and -barring certain issues in habeas and personal jurisdiction- rarely are they waived. Now, will they hear this? Not with a ten foot gavel.

Orwell's Intuition wrote on October 26, 2007 3:49 PM:

Unconstitutional, you say?

I bet Craig cherry-picks situations in which he demands abiding by the Constitution. One set of rules for him and his party; another set of rules for "others" unworthy of protection. I'm sure those well-versed in his crusade against gays can supply some examples of his hypocrisy.

Jake D. wrote on October 26, 2007 3:50 PM:

Schatz:

Are you certain the ROBERTS Supreme Court will similarly decline to grant cert?

CT Voter wrote on October 26, 2007 3:50 PM:

Larry Craig: the gift that keeps on giving....

Every time his name pops up, I suddenly start seeing alternative images for everything.

The oral arguments, for instance.

Filing the "briefs". All I can see is a bunch of lawyers handing over red polka dotted briefs...

As much as I'm enjoying this spectacle, however, I don't see that what he did in June was illegal. But then again, I don't ever use men's rooms. Apparently there's a whole lot more going on there than I was aware of.

martin wrote on October 26, 2007 3:58 PM:

I know he's a lowly Representative, but since we're talking closeted-hypocrits of the Republican Party, any word on Bob "I offered an undercover black officer a $20 and a blow job because I didn't want to be a statistic" Allen? I believe he's due in court in November. Maybe Larry and Bob should have their lawyers talk over coffee? I just can't help myself...I LOVE keeping Bob Allen's name on the table!

eric wrote on October 26, 2007 4:00 PM:

Two different things are being confused here. First, there is the issue of whether the law is unconstitutional. Second, there is the issue of whether his behavior was in violation of the law. Two very different things.

For what it is worth, I am an attorney in Minnesota and don't think either issue is a winner for Craig. First, the law, disorderly conduct, is vague, but intentionally so. It is a bit of a catch-all of a crime that is used A LOT. If the Court were to declare it unconstitutional, there would be literally THOUSANDS of people in Minnesota that would appeal this very common conviction.

Second, his behavior may or may not have been , but it sure was something. Almost nobody thinks that it should be condoned. This law fits it about as close as you can get - it is offensive.

Finally, and importantly, the real issue and the one that Court will address, is whether his plea of guilty was proper. I think the best Craig could do is to get a "do over" because the plea petition did not have a required waiver of counsel. I don't think he wins this issue, either, because he clearly was aware of his right to a lawyer.

P J Evans wrote on October 26, 2007 4:00 PM:

Has he ever explained why he was in a restroom that wasn't anywhere near where his airline gates were? A restroom that had a rep for this kind of activity, to the point where the cops had become aware of it and staked it out months before Craig was busted?

freepatriot wrote on October 26, 2007 4:13 PM:

so let me get this straight

a Senator who "ISN'T GAY", is going to argue that soliciting GAY SEX in a public restroom is a constitutionally protected act of free speech

and this guy's a REPUGLICAN ???

man, that "up is down", "black is white" attitude has really fucked up the repuglicans

I got a new game in mind (did I ever mention I was a bookie ???)

the repuglican party is so lost, confused, incompetent, narcasistic, and delusional right now, that I figure one of these conflicted and confused bastards is gonna snap soon

we could create a list of issues, determine odds, and bet on which repuglican totally reverses course on that issue

might sound crazy, but how many of you woulda bet that Senator craig would come out in suppot of soliciting gay sex in public restrooms

and the good senator isn't even gay (laughing into my sleeve)

Utopia wrote on October 26, 2007 4:19 PM:

I'm not a lawyer (which may be painfully obvious after the arguments below) but I was thinking about this the other day. Craig was charged with making a series of gestures and movements that match a well defined set of signals used by gay men to solicit sex in public bathrooms.

Now, there is a chance this was totally coincidental. I believe Craig has argued this was the case. So, I wondered, shouldn't there be a provision in the law for just this coincidence? And then I realized, of course! It's called a trial! And Craig had an opportunity to have one and fully explain it was purely coincidental that his movements matched the gay sex solicitation. But he waived his right to a trial. He chose to try to cover up (I haven't heard anyone use that term but that's what it was) the whole incident.

In a recent interview Craig said he wanted a chance to have his day in court (or words to that effect). Truth is he had a chance and passed it up. What he really wants is a second chance. I haven't heard him say why he should deserve a second chance.

Mark wrote on October 26, 2007 4:22 PM:

Was he at the Stonewall riot's in Greenwich Village in the 60's

Richard L. Adlof wrote on October 26, 2007 4:24 PM:

Jake D. @ October 26, 2007 3:36 PM:

Regarding your question:

"how about we simply get rid of all sexual deviants in Congress?"

I thought that you liked having Republicans in Congress.

All joking aside, this is not about who with. with what or how Senator Craig chooses to find sexual release . . . This is about where and public exposure. The government has duties to "establish Justice" and "promote the general Welfare".

If Craig had confined his expression of adventurous spirit to his own personal bathroom or chosen a bathroom specifically designated by the establishment for such behaviors to take place on the premises, this would be just a guy going about his business.

No money or monetary consideration was pro-offered. The sex act woulda been untainted by illegality IF it were not PUBLIC. Craig's choice of locale puts him in the same category as weeny-waggers.

I believe that Craig and the ACLU have this one wrong. While freedom of expression is a constitutional right, subverting the general Welfare and rights of others is not. What is a question here is not the right to speech BUT whether the state has faith executed its obligations to the people and Senator Craig AND there is a significant body of information pointing towards that it did.

The nature of the potential sex act is incidential . . .

pj in jesusland wrote on October 26, 2007 4:30 PM:

Sen. Craig is not arguing on principle, he's just looking for a legal mulligan.

I wonder if it has something to do with his retirement plan -- if he resigns before his term is over does he still get a full pension from the Senate?

Jake D. wrote on October 26, 2007 4:33 PM:

Richard L. Adlof:

I want CONSERVATIVES (regardless of party, preferably Independents) in Congress, not sexual deviants -- the nature of any potential sex act is therefore NOT incidential for my purposes -- I don't want homosexual priests in the Catholic Church either (better safe than sorry, I always say : )

ROSS HERSHBERGER wrote on October 26, 2007 4:44 PM:

They used to say a Conservative is a Liberal who's been robbed and a Liberal is a Conservative who's been arrested. Larry, welcome to the fast growing Liberal wing of the GOP.

colonpowwow wrote on October 26, 2007 4:45 PM:

So, if a man walks up to a police woman (or man, I guess) in an area known for nusiance prostitution activity and makes a circle with his forefinger and thumb, then pokes his index finger in-and-out while raising his eyebrows . . .

Is this protected speech? Larry?

anonymouse wrote on October 26, 2007 4:54 PM:

If Craig gets off, it will be more due to money and power than actual innocence. The wealthy and well connected can afford much better attorneys than common folk... and our government.

"We the People" have attorneys which are civil servants, meaning they can be good or mediorcre... but they will still retain their jobs.

Common folk get the same.

Craigs of this world can buy and sell attorneys, and will have a whole office of them representing him... probably paid for by donations from his reelection funds...

moondancer wrote on October 26, 2007 4:56 PM:

wonkette has interview with one of his gay sex partners posted today. Very sad. Miserable prick, you can be conservative without being an asshole Larry.

Jake D. wrote on October 26, 2007 4:57 PM:

Are you saying rich people shouldn't be able to hire attorneys?

Jake D. wrote on October 26, 2007 5:00 PM:

Craig is no conservative.

TheraP wrote on October 26, 2007 5:03 PM:

If he wins, does that mean a "street walker" is simply exercising 1st amendment rights? Just exercising!

moondancer wrote on October 26, 2007 5:05 PM:

Take all the deviants out of congress, there would only be democrats left.

Jake why do hate so much? I think you need to love your degenerate gay goopers. I'm pretty sure they'd like an opportunity to love you. In a manly steam bath way of course.

Gus wrote on October 26, 2007 5:08 PM:

Isn't this argument precisely a contradiction of the sort of idioitic "slippery slope" arguments that the right-wing hard-line clerics always make to express their intolerance?

If foot-tapping and hand-sliding in a rest room is protected speech, isn't what ensues (tea-room trade, ie, gay sex) also protected speech?

tony wrote on October 26, 2007 5:09 PM:

"Craig's lawyers will file their briefs by mid-December, and have asked to make oral arguments before the appeals court in St. Paul."

Oral arguments. Heh.

Jake D. wrote on October 26, 2007 5:11 PM:

I don't hate gay goopers, any more than I hate gay priests -- they need to taken away from their position of power though -- Obama can give them a referral for treatment options too.

moondancer wrote on October 26, 2007 5:26 PM:

I think all the legal arguments are moot. The issue is hypocrisy. He probably gets a "pass" if he's not a lifelong gay basher. Now he's dragging the incident into the theater of the absurd.
If he persists, more and more partners are going to come forward and prolong his humiliation.

Jake--McConnell,Graham,Dreier,McHenry,Condi Rice,Craig,....

Jake D. wrote on October 26, 2007 5:48 PM:

moondancer:

Frank, Studds, McAffrey, and Clinton.

dasher wrote on October 26, 2007 5:53 PM:

Jake D., now you've just become pathetic.

Jake D. wrote on October 26, 2007 6:03 PM:

At least we agree on Biden attacking Hillary Clinton and Barack Obama : )

Jake D. wrote on October 26, 2007 6:14 PM:

moondancer:

Tammy Baldwin (D-WI) as well -- I knew there was at least one I was forgetting.

bullwinkle wrote on October 26, 2007 6:22 PM:

tony wrote on October 26, 2007 5:09 PM:

"Craig's lawyers will file their briefs by mid-December, and have asked to make oral arguments before the appeals court in St. Paul."

Oral arguments. Heh.

"mmmmm.......briefs....."

maf54

"Oh Larry Craig's briefs!!! Forgeddaboudit! He's over 18!!!"

RandyR wrote on October 26, 2007 7:32 PM:

Jake D

Why on earth do you haunt this place? Do you have a facination with negative attention, do young ladies with demanding personalities and who wear leather interest you? People here treat you like you were a spitoon, why do you want that?

Jake D. wrote on October 26, 2007 7:39 PM:

I don't want people here treat me like a spitoon -- but it hardly bothers me -- I am not interested in young ladies with demanding personalities who wear leather (does that describe you?). I'm also not dead (yet) so I'm not "haunting" anywhere or anyone. I am here as the Devil's Advocate.

Jake D. wrote on October 26, 2007 7:45 PM:

Spittoon?

RandyR wrote on October 26, 2007 8:07 PM:

Well, Jake if you feel as though you need to speak on the Devils behalf why would you think that these good people would need or want the Devils opinion?

I have other questions and comments, but again why would you subject yourself nay encourage such as the abuse you receive here? There seems to be plenty of love out there for those of you political ilk, why do you encourage the derision you find here?

Jake D. wrote on October 26, 2007 8:20 PM:

It has nothing to do with Satan, and trust me I am not into masochism either. In common parlance, a Devil's Advocate is someone who takes a position for the sake of argument -- this practice is generally an instructional technique in which one person argues a position that another is less familiar with, thereby teaching proper argument -- the phrase "let me play Devil's Advocate" or equivalent is used in group discussions to counter groupthink.

Formerly, during the canonization process of the Roman Catholic Church, the Promoter of the Faith (Latin: Promotor Fidei), or Devil's Advocate (Latin advocatus diaboli), was a canon lawyer appointed by the Church to argue against the canonization of the candidate. It was his job to take a skeptical view of the candidate's character, to look for holes in the evidence, to argue that any miracles attributed to the candidate were fraudulent, etc. The Devil's Advocate was opposed by God's Advocate, whose job was to make the argument in favor of canonization. The office of Devil's Advocate was established in 1587 during the reign of Pope Sixtus V and was abolished by Pope John Paul II in 1983. This abolition streamlined the canonization process considerably, helping John Paul II to usher in an unprecedented number of elevations; nearly 500 individuals were canonized and over 1,300 were beatified during his tenure as Pope as compared to only 98 canonizations by all his 20th-century predecessors.

You said you had more questions?

Anonymous wrote on October 26, 2007 9:15 PM:

Jake D.,

A more important question is how do you define 'Conservative?' Over the last 50 years, a conservative would have been a FDR Democrat.

If you are referring to the radical recessivists and fascist plutocrats that have been running the show since the sucess of the 'Salamander's' Contract on America, you are confused in your terminology.

You were correct in your statement above that Craig is not a conservative . . . Voting over 97% of the time with Bush43's agenda clearly places him in the radical recessivist camp.

On your other main talking point, a real case can be made for the sexual deviation being defined as monogamous sex, whether hetro- or homosexual in nature. If that premise is true than Craig's sexual appetites are normal and the happy horse-hockey you are hocking is deviant. Seriously, everyone would be happier overall if they could be jumping anybody and everybody . . .Seeking unhapiness as a normative state of being has all the earmarks of mental illness . . .

Jake D. wrote on October 26, 2007 9:43 PM:

American conservative movement certainly does not trace its roots to FDR (Ronald Reagan actually switched to GOP because of the New Deal). I'm talking about the conservative values that took over after 1980 -- conservative principles dominated Reagan's economic and foreign policies, with supply side economics and strict opposition to Soviet Communism defining the Administration's philosophy and brought America back to her rightful place in the world -- Fred Thompson, obviously, has disappointed on that front so far.

I don't think anyone can make the argument with a straight (no pun intended) face that conservative American values embrace homosexual behavior -- nice try though.

cjop wrote on October 26, 2007 9:57 PM:

So this will be twice this year that Craig tries to "make oral arguments" in Minnesota.

MonkeyDog wrote on October 26, 2007 10:37 PM:

Jake D. nows how to cut and paste:

http://en.wikipedia.org/wiki/Devil's_advocate

Gosh, you are a smart one Jake.

Richard L. Adlof wrote on October 26, 2007 10:42 PM:

Reagan's insane war on the middle class was conservative? Theodore Roosevelt, who coined the phrase 'middle class', stated that the middle class was America's greatest asset and every American's rght.

Reagan disassembling the system of tarrifs that had keep America largely debt free for 175 years and creating a national debt almost equal to all the U.S. national debt for almost 200 years prior is conservative? Not even you can be 'short-bus' enough to argue that one.

Cutting Eisenhower's tax rates in half to insure that America's wealthest folk wouldn't pay for even a third of the resources and commons they consume to support their wealth is conservative? Dude, you have got to get a better dictionary . . . Barnes and Noble has them for under $10.

johnsnottoodistracted wrote on October 26, 2007 10:48 PM:

Maybe this guy could just tell the truth.
Why waste so much time, money and media?It's not like the truth is going to change.Never does anyway.
What is he involved with that requires him to be quilt free?Or just forgotten?
Why this big sewage spill with attempted mop up with q-tips?
Who has the most visible signs of brain damage?
You would think they would call in the neut for advice.He has some extra q-tips to wipe it all around.
Sory, yes the guy a few spaces up is right: it's just a little bit too funny.

RandyR wrote on October 26, 2007 11:17 PM:

Well I tried for intellectual conversation with you Jake and all I got was stolen thoughts. Maybe plagiarizing is OK with you but it ain't worth spit to me.

Roy Fitz wrote on October 27, 2007 6:03 AM:

Jake D. After reading your responses to the ignorant, why do you continue?
When they start spouting communist or socialist propaganda, I realize that I'm not having a two-sided conversation with them. I move on. Remember, 'Never try to teach a pig to sing, it just wastes your time and annoys the pig.' They won't get it until the scimitar is passing below their heads on its way to severing them. This just makes our jihad all the easier. We thank the left for distracting the right so we can obliterate both. Remember, divide and conquer. We learned as much from Richard. Allah is Great! P.S. We'll love this country better then you did.

Matt wrote on October 27, 2007 6:37 AM:

That's funny Roy, I always thought the capitalist was the pig. Sorry, but just as communism doesn't work, neither does capitalist. Their is no free market. Quit lying, grow up, and let's work together. Or we really do need to kill all you fascist.

Matt wrote on October 27, 2007 6:38 AM:

That's funny Roy, I always thought the capitalist was the pig. Sorry, but just as communism doesn't work, neither does capitalist. There is no free market, no such thing has ever existed, and there never will be. Quit lying, grow up, and let's work together. Or we really do need to kill all you fascist.

Roy Fitz wrote on October 27, 2007 7:19 AM:

This is too easy. Dangle the bait and they bite. See ya! Wha ha ha.

mountainman wrote on October 27, 2007 11:11 AM:

Not only should Larry Craig be inducted into the Idaho Hall of Fame but he should run in '08 with Ted Haggert as his VP. This Republican Family Values ticket would draw well in bathrooms all across America.

Royd Fits wrote on October 27, 2007 11:29 AM:

Tee hee I got someone on a forum to respond to ME!!! Yippie!!! Someone responded to what I wrote!!! They took the bait! That means I'm a Master Baiter!!! Yippie

Anonymous wrote on October 27, 2007 3:07 PM:

>>There is a LOT to be said against Craig's record and his hypocrisy. But, you know, he and the ACLU are right about this. His alleged acts should not be seen as criminal ones.

Then it's sexual harrassment. Take your pick.

RandyR wrote on October 27, 2007 5:56 PM:

Roy,

Why is it that you would compare your thoughts to chopped fish or perhaps worms. Maybe it's that your bait is artificial.

Richard L. Adlof wrote on October 27, 2007 8:22 PM:

Side Note for Jake D.:

To answer your qewstion:

I am not interested in young ladies with demanding personalities who wear leather (does that describe you?).

Yes. Enthusiastically. AND my wife loves that about me.

Debbie wrote on October 28, 2007 2:51 AM:

Enforcement authorities need to get their priorities in order

http://sfbay.craigslist.org/doc/clt/459032955.html

I also liked this one, and thought I'd share.

Audacious Costume Ensemble:
The ladies will look absolutely chic in the "Larry Craig S.W.A.T. Tee-Shirt and optional cap. " Matched by black jeans and clunky black shoes or better yet combat boots, people will surely notice you and get the hell out of your way. With a set of handcuffs attached to a thick black belt the look is mostly complete.
Of course there is an edgy guy T-Shirt version too.

http://sfbay.craigslist.org/doc/clt/459010971.html

LegalCat wrote on October 28, 2007 11:56 AM:

Ok, usually I'm right behind the ACLU, but the idea that there's a constitutional right to approach guys in toilet stalls is just absurd.

Let's take an analogy. Let's say I come into your house at 6 AM, wake you up, and start discussing whether you've accepted Jesus Christ as your personal savior. Heck, let's make it better: let's say that I'm a reporter for a religious periodical like The Watchtower, and I come into your house at 6 AM, wake you up, and start interviewing you for a story I'm writing on whether people have accepted Jesus Christ as their personal saviors. That implicates THREE different First Amendment rights: freedom of speech (I was, after all, speaking to you), free exercise of religion, and freedom of the press.

So, if you call the cops and have me busted for wandering into your house, I just have to point out to the judge that I was exercising my constitutional rights, and I get off, right? No, of course not. That's just silly. The state can certainly prohibit conduct consisting of what would otherwise be the exercise of constitutional rights, when it has a compelling interest in doing so. In my example, the compelling interest is the state's interest in protecting your privacy in your own home.

In Craig's case, the state's interest was protecting the right of people to defecate in private. I guess you can argue about whether the state's interest in that is adequately compelling to overcome the First Amendment prohibition on criminalizing communicative behavior, but if you ask me, I think it's PLENTY compelling enough. I really want to feel like I can sit in a toilet stall and do my thing and not have people approaching me for ANYTHING, and I have no problem at all with the state protecting that interest.

I think the ACLU is dead wrong on this one. I don't say that often.

Shadow wrote on October 28, 2007 1:39 PM:

I think that someone told Craig to get A CLU and he just took them literally.

Barbara Mathews Blanton wrote on October 28, 2007 6:03 PM:

You know, I just can't get myself all worked up over Craig's hand signals any more. After some thought, I have changed my mind and think that what he did or didn't do wasn't a crime and was none of our business.

Now, if he had been in that stall with another person, man or woman having sex, there's no question that it broke some law. Supposed hand signals are another thing. If police want to stop sex there, they just need to stand inside the bathroom and look stern!

Just because these were supposed gay signs, they shouldn't be against the law. Now if someone saw them, took pictures and reported them to the media because this guy is anti-gay in all his politics, I suppose it might be interesting for his constituents and he might be politically accountable for hypocrisy but illegal ?????

nrglaw wrote on October 29, 2007 12:25 AM:

Jake--Well you know your canon law.

nrglaw wrote on October 29, 2007 12:32 AM:

legal--I agree. The ACLU is off its nut on this case. Toe tapping and hand waving have an illustrious history, I'm sure, in most human cultures. But your right to tap and wave stops at my side of the toilet stall.

And this is why I give so sparingly to the ACLU. Because I hate to think of my dollars going to support Larry Craig in this idiocy. On that I guess we disagree.

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