Senator Larry Craig, Free Speech Poster Boy?

Should Senator Larry Craig turn to the First Amendment to defend his toe-tapping rights?

| Fri Aug. 31, 2007 12:00 AM PDT

Idaho Senator Larry Craig's political career may be over, but could the senator secure a place in history by fighting his guilty plea and helping bring an end to the unconstitutional practice of criminalizing toe-tapping? Maybe a brilliant lawyer from the Lambda Legal Defense Fund could help him out. After all, civil liberties lawyers have been fighting these types of cases for as long as cops have been casing public restrooms.

Not all that much has changed since G. Harrold Carswell, a married man Nixon had nominated for the U.S. Supreme Court, was arrested in 1976 for making an "unnatural and lascivious" advance on an undercover cop in a Florida shopping mall restroom. Law enforcement has a long history of targeting gays and lesbians with disorderly conduct prosecutions like the one that caught Craig, and not just in public restrooms known for anonymous gay hookups, but also in places like gay bars and clubs.

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Many of the old prosecutions were based on sodomy laws, on the grounds that a man who makes a pass at a man is soliciting an illegal act, regardless of where it's performed. But consensual gay sex isn't illegal anymore, thanks to the 2003 Supreme Court decision in Lawrence v. Texas (though places like Virginia are still trying their best to ignore the decision). Though consensual gay sex may now be legal, asking for it, in most states, still isn't. No high court in the land has yet declared that gay and lesbian citizens have the constitutional right to make a pass.

That's why Craig could be arrested for tapping his foot, which in itself can hardly be defined as a crime. He was soliciting—though not actually having—consensual sex, something straight men do to women, in public places, all the time, in far more obnoxious ways and without fear of prosecution. What's troubling about his case, too, is that there's an assumption that he was looking for sex right there in the stall, which would clearly be illegal if he'd gone through with it. But what if he wasn't? What if he had planned to go somewhere more private, which would be legal? There's really no way of knowing, since he wasn't arrested for having sex—just asking for it, however nonverbally.

Had Craig shown the good sense to get a lawyer after his arrest, he could have marshaled some lofty First Amendment defense arguments that might have helped not just him but an untold number of men whose lives have been devastated by these kinds of undercover sting operations. As in most states, the Minnesota statute on which Craig's arrest was based defines disorderly conduct as engaging in indecent or obscene conduct that someone knows or has reason to believe will cause alarm in another person. Foot tapping alone isn't likely to alarm anyone, especially not someone who's already indicated that he's open to the invitation, as the cop did in Craig's case. The last thing most gay men want, in fact, is to hit on a straight guy who's not interested. The foot tapping and other hand signals are designed specifically to avoid a scene.

Civil libertarians have been making these arguments in entrapment cases for more than 40 years, though without much success. (For a stellar legal history on this subject, check out Courting Justice: Gay Men and Lesbians v. the Supreme Court, by Joyce Murdoch and Deb Price.) Back in the 1960s, a New York Civil Liberties Union attorney asked the U.S. Supreme Court to hear a case involving an undercover cop who'd let a man in a gay bar rub his thigh without objection and then later arrested him for disorderly conduct. Morton P. Cohen argued that his client's conduct, and that of others like him, hardly met the legal definition of "disorderly." "The majority of homosexual solicitations are made only if the other individual appears responsive and are ordinarily accomplished by quiet conversations and the use of gestures and signals having significance only to other homosexuals," he said.

The U.S. Supreme Court declined to take up the case, but eventually the New York City police commissioner saw the light and put an end to gay entrapment stings. Clearly, other states still haven't follow suit, now even 40 years later. Craig could use his legal fight to further the cause.

Ending the questionable law enforcement operations that caught Craig doesn't necessarily mean the public has to put up with sex in the stalls, either. There are other ways to achieve the same ends without violating anyone's constitutional rights. The now-ubiquitous surveillance camera—accompanied by a big sign announcing its presence—has worked wonders in D.C.'s public library (far busier hook-up spot, no doubt, than the Minneapolis airport), and would probably have worked just fine in Minnesota. (Okay, maybe it would simply violate everyone's civil liberties, but at least it wouldn't be singling out gays for special treatment.) And cops would still be free to arrest people for actually having sex in public—just not for simply asking for it.

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