Wednesday, January 16, 2008

Is Senator Larry Craig's 'Wide Stance' Constitutionally Protected?

The ACLU says so and I more or less agree with them. In an amicus brief filed with the Minnesota Court of Appeals, the ACLU makes the point that a law that seeks to punish the mere invitation to sex is overly broad and violates the First Amendment. After all, if one walks up to an adult and says, "hey, let's do the nasty," one has hardly violated anyone else's rights.

In contrast, if the airport had a "no flirtation in the bathroom" policy, they would have been within their rights to eject Craig from their facility--but that's a civil issue, not a criminal one.

But perhaps most of all, I simply love that the ACLU is defending Craig along privacy lines-lines that most conservative Republicans are loath to defend. It puts Craig in an awkward position because if he wins on the basis of the ACLU's arguments (and not his own "wide stance" argument) he's going to be the Republican Senator who got out of a public lewdness charge because the courts ruled that he had an expectation of privacy while tapping himself away in the airport men's room. And as we all know, if there is one thing the world likes, it's the taste of sweet delicious irony.

2 comments:

Burgess Laughlin said...

1. If the "invitation to sex" consists of physically touching or even starting to touch another adult without that second person's consent, is that not a violation of rights? Isn't this what Sen. Craig has been accused of doing?

2. If I own property and I make use of my property conditional on certain behavior, isn't someone who violates those terms trespassing? Isn't trespassing a criminal offense?

I oppose criminalizing consensual adult sexual behavior, homosexual or heterosexual, but I strongly support laws against physical intrusions or even repeated verbal intrusions (which, perhaps, is technically harassment or something similar).

I am not a philosopher of law or a lawyer. I welcome clarification.

Nicholas Provenzo said...

Burgess Laughlin wrote:

>If the "invitation to sex" consists of physically touching or even starting to touch another adult without that second person's consent, is that not a violation of rights?

I think touching another person without consent is a violation of rights. Exceptions might be during a medial emergency, when it is impossible for a person to give consent, or with minor children to keep them from danger or enforce discipline, but as a starting point, I agree with that touching is not permissible without consent.

>Isn't this what Sen. Craig has been accused of doing?

Yes, but under a law that is so overbroad that it also threatens to punish protected speech. Craig is not in the moral right for his actions, but the law that he stands accused of violating is nevertheless a defective law.

According to the statute (Minn. Stat. § 609.72(1)(3)):

"Whoever does any of the following in a public or private place . . . knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor: . . . Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others."

If you were to say that God does not exist and that to believe in Him is completely irrational, one could argue that you would run afoul of this statute too, yet it is well-established law that speech may not be made a crime solely because a listener could be offended, disturbed, alarmed or even angered by its content. I think the ACLU is right to point this out.

>2. If I own property and I make use of my property conditional on certain behavior, isn't someone who violates those terms trespassing? Isn't trespassing a criminal offense?

As trespassing, yes, but that's not what Craig is charged with.