ACLU aids Sen. Larry Craig in appeal effort

The American Civil Liberties Union and its Minnesota affiliate have filed papers in support of Sen. Larry Craig's appeal effort. Craig is appealing a decision by a Minnesota court to deny his motion to have his guilty plea to disorderly conduct withdrawn. Craig was arrested in June for allegedly soliciting an undercover officer for sex in a Minneapolis-St. Paul International Airport restroom.

When Craig was arrested he was originally charged with interference with privacy, as well as disorderly conduct, a point the ACLU uses to argue its case. Citing a Minnesota Supreme Court decision from 1970, the ACLU argues that law enforcement invaded Craig's privacy and the fact that he was charged with an interference of privacy demonstrates that his actions and the location where the arrest occurred were private. In other words, the court was using a circular argument to deny Craig's request to withdraw his plea.

"When it charged the defendant with interference with privacy," the brief read, "it alleged that he had looked into a 'place where a reasonable person would have an expectation of privacy.'"

Because of the private designation of restroom stalls, there was no crime committed, even if Craig had had sex. "The government cannot prove beyond a reasonable doubt that Senator Craig was inviting the undercover officer to engage in anything other than sexual intimacy that would not have called attention to itself in a closed stall in the public restroom," it said.

In fact, the brief says, private sex is not illegal and neither is publicly asking someone to have private sex:

Sex is a constitutionally protected liberty interest. Thus, the government may make sex a crime only where it has a constitutionally sufficient justification for doing so. The government does not have a constitutionally sufficient justification for making private sex a crime. It follows that an invitation to have private sex is constitutionally protected and may not be made a crime. This is so even where the proposition occurs in a public place, whether in a bar or in a restroom.

As Craig's lawyers have also argued, the brief says that Craig's actions constitute protected speech. "Physical gestures that amount to an invitation to have private sex are a form of constitutionally protected expression," the brief says. Craig was arrested "for soliciting an act which is not a crime."