Everyday Scientist (NotScience)

What is wrong with Wide-Stance Larry?

October 29, 2007 at 10:15 pm | jordan | law, politics, society

Senator Larry Craig is still fighting his misdemeanor record for lewd conduct that took place in a Minnesota bathroom back in June of 2007. The latest judge in this case refused to throw out Larry’s guilty plea, probably because the plea was pretty darn clear. This is after Larry said he didn’t want to make a bill deal about it, then said he was coerced, and somewhere in there Larry “I’m not gay”-ed himself. What’s next, you might ask? Now his lawyers are trying to get the misdemeanor thrown out by saying the Minnesota statute under which Larry was convicted is unconstitutional.

Larry’s lawyers did not originally argue constitutionality, and typically you can’t bring up fresh arguments on appeal. So maybe the lawyers are relying on the ACLU’s previously-filed amicus brief, which did argue constitutionality, but the ACLU’s argument is not what Larry’s lawyers would argue. See, the ACLU argued that Larry’s bathroom gestures counted as speech protected under the First Amendment, but Larry can’t argue that! He has adamantly denied making any such gestures. He simply says he was the victim of profiling due to his wide stance. So to claim that the constitution protects him is to claim that he made those gestures of sexual solicitation.

That means Larry’s lawyers have the bizarre task of claiming that constitutionality was previously argued, but then throw in a constitutionality argument entirely different from the previous one. I seriously doubt the courts will go for this, but assuming Larry’s lawyers can jump that hurdle, what is the constitutionality argument that they find potentially meritorious?

My guess is that they have to argue that the Minnesota statutes are unconstitutionally overbroad and vague. We’ll start with overbreadth.

Overbreadth

A statute is unconstitutionally overbroad when it encroaches substantially on constitutionally protected speech. The cool thing about arguing overbreadth is that you can argue it even if the overbroadness pertains to speech that you didn’t do. That is, you can speak on behalf of third parties who are not being sued, arguing that the statute sends a chilling effect among them, unlawfully curbing their protected speech. If a statute is overbroad, it’s stricken in its entirety, and your conviction is overturned. Well, do you think these statutes substantially squish constitutionally protected free speech? Let’s take one at a time.

609.72 DISORDERLY CONDUCT.
Subdivision 1. Crime. Whoever does any of the following in a public or private place, including on a school bus, 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:

(3) 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.

Well, there are some questionable terms in there. Like how much constitutionally protected private behavior does this curb? Also, I’d say the First Amendment certainly protects offensive or boisterous speech (given that speech is a form of conduct) that arouses resentment in others. But the statute limits how it curtails such speech by throwing in enforcement only when the people know or think they’ll “alarm, anger or disturb others or provoke an assault or breach of the peace.” The First Amendment probably doesn’t protect would-be assaults or breaches of peace.

Now onto statute #2:

Subdivision 1. Surreptitious intrusion; observation device.

(c) A person is guilty of a gross misdemeanor who:
(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a sleeping room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

I’m just not seeing overbreadth here. Sorry Larry. Do you guys see overbreadth in these statutes?

Now what about vagueness?

Vagueness

A statute is unconstitutionally vague if it fails to give persons reasonable notice as to what is prohibited. Again, check out those statutes. I’m not sure Larry can argue vagueness on behalf of others, but assuming for now that it does, I think the statutes are clear enough to tell people what they shouldn’t be doing. Again, what do other people think?

Kicking out Larry

There really should be a word for someone who passes the point where they can simply retire in disgrace, but instead chooses to pass the point of disgrace and enter the point of ludicrousness. For now, I’ll just say “dissgraceful.” It’s happened so often during the current administration: Ashcroft, Rumsfeld, that guy from FEMA, that anti-contraceptives guy in charge of the FDA, Gonzales. I’d like to add Larry to the list dissgracefuls, even though he hails from a different branch as the others.

So if he won’t leave of his own accord, then I need yet another word to describe people — i.e., the Senate –for sitting on their voting hands when they really should be kicking out the dissgracefuls. It’s really not that hard to do. The Constitution permits the Senate to expel any member by a two-thirds majority vote. Only 15 senators have been expelled, 14 of the, for supporting Confederate secession. Source. Hell, the Senate could just censure Larry, which requires just a simple majority, and Larry gets to hang out afterward. (No pun intended.) But they won’t cause they’re a bunch of chickens, which is why their popularity in the polls shows even lower than Bush’s.

And I do think Larry deserves the censure, if not the expulsion. Why? I can stomach the misdemeanor. But I think he’s being duplicitous. No matter which way it goes, he lied (his evidence of alleged coercion to the contrary notwithstanding). Perhaps the Senate is just waiting for him to exhaust his appeals before moving against him. (Again, no pun intended.) But his vote still counts! Can’t there be an intermediate remedy, something like a temporary expulsion, a suspension if you will? I dunno. Time permitting, I’ll open crack crack open the Constitution another day and take a poop look at it.