WASHINGTON — The American Civil Liberties Union has filed a friend-of-the court brief on behalf of Sen. Larry Craig, R-Idaho, saying Minneapolis airport police violated his Constitutional right of free speech in charging him with disorderly conduct after arresting him in an airport men's room.
The ACLU filed its brief in the same Minnesota court where Craig is hoping to withdraw a guilty plea in connection with soliciting sex from an undercover police officer in the men's room of the Minneapolis airport. The Idaho conservative, who rarely counts the civil liberties group as an ally, is scheduled to appear in court on Sept. 26.
In its brief, the ACLU argues that the government can arrest people for soliciting public sex only if it can show beyond doubt that the sex was to occur in public. The ACLU argues that solicitation for sex in a private place is protected speech under the First Amendment, no matter where the solicitation occurs.
The sting operation used by Minneapolis airport police was unconstitutional and was so broad that innocent people could be caught up in it, said Anthony Romero, executive director of the ACLU.
"It is not a crime to solicit sex that would occur in private," Romero said. "It is a crime to solicit sex that would occur in a public place. What the state failed to show was that Senator Craig clearly expected to have sex in public."
The ACLU brief also argues that there are plenty of less-invasive ways for law enforcement to stop nuisance behavior, such as posting signs warning people that sex is banned in the restroom and sending in uniformed officers to patrol.
Craig's legal team learned on Friday that the ACLU would be filing the brief, but it didn't actively seek help from the civil liberties group. They welcome their ideas, said Craig's Washington, D.C.-based criminal lawyer, Billy Martin.
"We have argued to the court that the facts which Senator Craig admits happened on that day do not constitute a crime," Martin said in a statement. "The ACLU's legal position is that Senator Craig's arrest may have violated his Constitutional rights. Furthermore, the ACLU's position is the sting conducted by the airport police may also violate the protection the United States Constitution provides all of us."
A spokesman for the Minneapolis-St. Paul airport said that its police department stands by its undercover sting and that its prosecutor will fight Craig's efforts to undo his guilty plea. They expect to file a response to Craig's motion at the end of the week or early next week, said airport spokesman Patrick Hogan.
"We believe the charges filed fit the crime," Hogan said. "Senator Craig, ultimately, he agreed to the charge of disorderly conduct and ultimately pleaded guilty to the crime. We stand by the charge and are prepared to defend it in court."
It's not unheard of for the ACLU to step to the defense of high-profile people who don't necessarily agree with the group's civil rights mission, Romero said. When conservative talk show host Rush Limbaugh faced an investigation into prescription drug fraud, for example, the ACLU filed a friend-of-the-court brief defending his medical privacy. The ACLU argued successfully that the records should be off-limits to prosecutors.
Craig's only previous alliance with the ACLU was in 2004, when the Patriot Act was being re-authorized and he was one of only a few Republicans to say that the provisions of the post-9/11 anti-terror law were too intrusive.
Craig told the Los Angeles Times that his skepticism about the government's investigative and police powers dated to the 1992 showdown between federal agents and Randy Weaver's family in the now-infamous confrontation in Ruby Ridge, Idaho.
"I am one of those who has a healthy suspicion of my government," Craig told the newspaper in 2004. "If it costs one person their reputation, their business or their family based on false information, then shame on us."
But in general, Craig's politics have ranged well to the right of the ACLU. In 1994, he scored an ACLU approval rating of 5 out of 100. His current rating puts him at about 25 percent in agreement with civil rights issues that the ACLU considers important, said the organization's spokesman, John Kennedy.
Craig has said that he expects to step down from his Senate job on Sept. 30, but that he's leaving open the possibility that he could clear his name in court and return to office to finish the 16 months remaining in his term.