Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The ACLU is rightly coming to the legal defense (as opposed to political or moral defense) of Sen. Larry Craig, arguing that the law under which he was arrested is too vague and arrests people for something that is not illegal:
But the ACLU says it doesn't matter whether he solicited sex because that's not a crime."It is a crime to have sex in public. It is not a crime to propose or solicit sex in public, whether it's in a bar or in a bathroom," Romero said.
Quite right. This is an entirely separate issue from whether Craig is a hypocrite and a liar, which he clearly is.
Comments
He was charged with two things "invasion of privacy" and "lewd behavior". The "lewd behavior" bit I can buy ACLU's argument. But the "invasion of privacy" their argument doesn't work for me. But less we forget the idiot did plead guilty.
But the ACLU has always been against behavior profiling (a stance I completely disagree with) but I do agree with them that increased checks on the bathrooms is a better way of dealing with this problem.
Posted by: yoshi | September 19, 2007 10:09 AM
Does Craig think he's doing himself a favor by keeping this in the spotlight?
Posted by: Tegumai Bopsulai, FCD | September 19, 2007 10:29 AM
So what do you think of the following argument:
http://kipesquire.powerblogs.com/posts/1188403710.shtml
Posted by: delurking | September 19, 2007 11:00 AM
What exactly constitutes "lewd behavior" and how can criminalizing it be constitutional?
Posted by: Gretchen | September 19, 2007 11:01 AM
Everyone (particularly right-wingers) seems to be up in arms about this "problem" of gay sex in bathrooms - think of the children!! Most confess to have never thought about this practice and the proposed dreadful effects upon public morals and kiddies.
It seems odd that despite their constant thinking about the evils of icky bum-sex, they have never actually encountered it in public bathrooms. Therefore it must surely be less prevalent, or at least less obvious, than their shrill "what if my child were to see this" screechings allow for.
I personally have used many public bathrooms in the USA, UK and elsewhere and have never encountered any untoward activity, sexual, narcotic or otherwise. But, of course I wasn't taking a wide stance.
Posted by: Alan | September 19, 2007 12:04 PM
Gretchen asked:
FYI, IANAL
Quick search found this fairly vague definition: Lewd conduct
Looks to be a catch-all, and a way to add a generalized charge for a specific offense.
Posted by: Jason I. | September 19, 2007 12:18 PM
A pea-brained member of the TV media in Atlanta headlined the story as the "liberal ACLU" coming to the aid of "conservative" Craig.
Posted by: Mark P | September 19, 2007 1:09 PM
I got a question about the "invasion of privacy".
If being in a stall with the door closed is considered a "private" space, then how can having sex in that stall with the door closed be construed as "public" sex?
If on the other hand, being in a stall with the door closed is not "private", then how can the guy be charged for invasion of privacy?
Posted by: Soldats | September 19, 2007 4:37 PM
Soliciting sex for money is a crime. However, Sen. Craig is charged with activities that are typical of that process. The officer could have simply played this out to that end and saved us all this ambiguity.
On the other hand. The officer stopped it all at a point where it is a minor issue with a simple fine. I suppose in hopes of helping the person come to the realization that soliciting sex for money in a public mens room is to be avoided.
I think the officer was acually serving the best interests of all here. Frankly, I travel alot and I am tired of gay sex in mens rooms when I have to go. I think using a light touch was a good thing to disrupt the activity.
Posted by: George | September 19, 2007 7:10 PM
A cop in a uniform walking around the corridors and occasionally stepping into the men's room would accomplish the same thing with less trouble for everyone involved.
Posted by: Mark P | September 19, 2007 7:40 PM
George, you're the only one here who seems to have encountered it on a regular basis. I've had a guy put a foot under the partition before, but that was when I worked in DC, so it was probably just Larry Craig.
Posted by: kehrsam | September 19, 2007 10:09 PM
Gretchen asked:
The statute would almost certainly be ruled void for vagueness if subjected to a constitutional challenge. For a discussion of the vagueness standard in the context of the crime of Vagrancy, see Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 [1972]. A good discussion can be found here:
http://law.jrank.org/pages/11152/Void-Vagueness-Doctrine.html
Posted by: kehrsam | September 19, 2007 10:39 PM
I don't travel much these days (I'm retired) but I put in 100,000+ air miles every year during the '70's and '80's and never saw the slightest hint of gay solicitation--the worst thing being seeing guys try take a sponge bath and/or change clothes by the wash basins. Like most fantasies that the right wing fears, gay sex in public bathrooms is minimal at best. That said, the ACLU is right to defend Craig against the charges, even with the guilty plea. The latter was clearly a product of Craig's hypocrisy wherein he hoped the misdemeanor would be too minor to be noticed so he could go on being the total hypocrite, leading a double life. That's the crime for which he should be convicted and the place for conviction is the voting booth. Whether the good people of Idaho replace him with a Democrat of a Republican, the surely can find someone without the hypocrisy.
Posted by: Keanus | September 19, 2007 10:54 PM
Keanus -
I too, have been subjected to the horrors of men sponge bathing and the like, in public restrooms while traveling. Personally, I think that there should be a law against those with the man boobs (or "moobs," as my partner calls them) exposing themselves in public bathrooms (or the beach for that matter). Talk about something that's likely to traumatize the kiddies. . .I should admit, for full disclosure, that I am in the process of developing my own moobs, since my metabolism hit a brick wall. Still.
Posted by: DuWayne | September 20, 2007 1:01 AM
Unless I am missing something, Craig pleaded guilty. To a charge (this is from memory) something like "disturbing the peace."
Why is the ACLU getting involved now, in a case in which the defendant had already pleaded guilty?
Posted by: raj | September 20, 2007 6:38 AM
There's an even more clear-cut case that the ACLU is involved with right now. A Florida man (an Episcopal minister, actually, who is married to a woman) asked an undercover cop in the public bathroom of a municipal park if he wanted to go home and have sex. The cop agreed and both of them got in their cars and the priest followed the cop to another location, where he was then arrested and charged with "soliciting for a crime against nature".
This is pretty obviously not a case of public sex or even soliciting public sex, but he was arrested anyway. It's a public solicitation for private sex, which the ACLU is arguing is protected speech under the first amendment. Most men caught in a sting like this end up paying their fine quietly even if the charge stinks because they don't want their wives/employers/etc. finding out.
Here's a news report about this case:
http://www.expressgaynews.com/2007/9-13/news/localnews/4024.cfm
Posted by: Alex | September 20, 2007 11:18 AM