Sen. Larry Craig's foot-tapping and hand movements in an airport bathroom amounted to speech protected by the First Amendment, the American Civil Liberties Union argued in court papers on Monday.
The Idaho senator pleaded guilty to misdemeanor disorderly conduct after an undercover officer at the Minneapolis airport alleged that Craig solicited him for sex. Craig has denied that, and his attorneys have asked a judge to let him withdraw the guilty plea.
Craig was accused of moving his foot next to a police officer's foot and tapping it in a way that indicated he wanted sex. He was also accused of sending a signal by swiping his hand under the divider between the stalls, and of peering into the officer's stall before Craig took his own stall.
Even if he did those things, they're not a crime, the ACLU argued. And even if Craig solicited sex, it would only be a crime if police could prove he was seeking illegal bathroom sex and not a legal liaison somewhere else.
The ACLU also argued that the disorderly conduct statute is too vague to be enforceable in Craig's case.
The ACLU asked the judge to accept its arguments as a friend-of-the-court brief in Craig's case.
Chuck Samuelson, the executive director of the ACLU's Minnesota branch, said other police departments have prevented bathroom sex by posting signs and patrolling with uniformed officers.
Samuelson said the airport undercover work "is the kind of sting operation that at the very best borders on entrapment."
A Hennepin County District Court judge is scheduled to hear arguments on Craig's motion to withdraw his guilty plea on Sept. 26.