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Senator Craig, the First Amendment and Our Collective Struggles for Modesty

By Eric L. Lipman

In an unpublished opinion issued earlier today, a panel of the Minnesota Court of Appeals turned away dual challenges to the August 2007 conviction of U.S. Senator Larry Craig (R ? Idaho) on charges of disorderly conduct.

The appellate panel denied both Senator Craig?s request to withdraw his earlier guilty plea as well as the Senator?s and the American Civil Liberties Union?s challenges to the constitutionality of Minnesota?s disorderly conduct statute.

On the constitutional claims, the panel ?assume[d] without deciding? that Senator Craig?s gestures underneath a public bathroom divider merited First Amendment protection as expressive ?speech;? going on to hold that even if the signals were speech, the disorderly conduct statute was sufficiently detailed and necessary to pass constitutional muster.

While agreeing that courts should, whenever possible, avoid deciding constitutional questions, I wondered whether the public would have benefitted more if the panel had addressed the question of whether Senator Craig?s bathroom entreaties qualified as protected speech.

While there are solid arguments that such communiqués are outside of First Amendment protections, such a conclusion is not as sturdy or as widely shared as one might guess. Before the District Court below, for example, the ACLU argued that Senator Craig?s conviction was void "because individuals engaging in consensual sex in a public restroom stall have a reasonable expectation of privacy ?.? As to this point, the District Court replied that ?depending on the facts of any particular case, that may be true, [yet] the acts alleged in this case are the solicitations ?.? Before the District Court, and still today, there is a real tussle over whether the Seantor's conduct is protected speech.

Likewise important, because the appellate panel assumed that the Senator?s gestures qualified as speech, a jump to the second step in the legal analysis presumably placed upon the government the burden of establishing a compelling need and a narrow tailoring of any restrictions in the disorderly conduct statute. The government cleared those hurdles in what appeared to be short work; but against such a murky legal backdrop, I wondered whether taking the questions in that order was the right course.

Thus, without having any particular answer in mind, it is fascinating to ask: Was the court acting more modestly by assuming First Amendment protection for the Senator's "message;" or would it have pursued an even smaller agenda if it addressed first the question of hand signals as "speech"? Which is the more the modest and limited approach?

Similarly, mindful that the appellate court would face a ?constitutional issue? regardless of how it answered this first question, is the propriety of a statute a better question for it to tackle than the nature of "speech"?

The panel?s complete analysis is accessible here.

Senator Craig?s own statement on the panel?s ruling is accessible here.

Full post as published by Within the Scope on December 09, 2008 (boomark / email).