Larry Craig Photo: WDCpix

U.S. Sen. Larry Craig (R-Idaho) cannot withdraw his guilty plea in the infamous 2007 Minneapolis-St. Paul airport bathroom sex case, the Minnesota Court of Appeals ruled today in an “unpublished” opinion. That means Craig is stuck with having copped in District Court to a misdemeanor charge of disorderly conduct for allegedly signaling an interest in engaging in sex via foot taps from one restroom stall to another in which an undercover police officer was staked out.

The decision’s “unpublished” status means the court doesn’t want its ruling used as precedent in future cases — interesting, in view of charges that Craig sought special treatment or was being singled out for preferential or especially harsh treatment because of his status as a U.S. senator. Craig issued this statement:

I am extremely disappointed by the action of the Minnesota Court of Appeals. I disagree with their conclusion and remain steadfast in my belief that nothing criminal or improper occurred at the Minneapolis airport. I maintain my innocence, and currently my attorneys and I are reviewing the decision and looking into the possibility of appealing. I would like to thank all of those who have continued to support me and my family throughout this difficult time.

Whether the 28-year Senate veteran who is retiring this year plans an appeal isn’t known; Craig’s office has not yet returned a phone call to the Minnesota Independent. One recorded message said the staff was busy boxing up his files.

The case hinged on Craig’s plea, as cited in today’s ruling:

I am pleading guilty to the charge of Disorderly Conduct as alleged because on June 11, 2007, within the property or jurisdiction of the Metropolitan Airports Commission, Hennepin County, specifically in the restroom of the North Star Crossing in the Lindbergh Terminal, I did the following: Engaged in conduct which I knew or should have known tended to arouse alarm or resentment or [sic] others, which conduct was physical (versus verbal) in nature.

And the offense that’s at the root of all this? As cited in today’s opinion:

The complaint stated that appellant “peered” into the restroom stall occupied by the officer for as long as two minutes and that the officer “observed the Defendant tap his foot several more times and move his foot closer to the stall occupied by [the officer.  The officer] moved his own foot up and down slowly.  [The officer] observed the Defendant move his right foot so that it touched [the officer‟s] left foot, at which point the Defendant‟s foot was within the stall area of the stall occupied by [the officer].”

Hudson, Toussaint and Kalitowski

A three-judge panel consisting of Judge Natalie E. Hudson, Chief Judge Edward Toussaint, Jr., and Judge Thomas J. Kalitowski issued the decision. The opinion has two parts. First, the panel denied Craig’s arguments that his plea wasn’t specific about what action he was pleading to, and that there wasn’t an adequate judicial record of the hearing where his written plea was entered. (There is a record, the judges said; Craig simply didn’t provide them with a transcript.) It was Craig’s fault, the judges wrote, that he didn’t ask for a second hearing to establish what had occurred at the first — but at the time, Craig was still hoping to keep the case hush-hush.

The court didn’t buy Craig’s insistence that no “others” were bothered by his conduct (besides the officer in the next stall) as the charge requires. The judges said they took “others” to mean people who were also in the restroom at the time, and anyway the presence of “others” beyond one other person can be theoretical.

Craig’s late-in-coming entrapment defense also didn’t move the judges, who found that, for one thing, the senator initiated the bathroom dialog, and for another, failing to assert entrapment isn’t grounds to take back a guilty plea.

In the second part of the opinion, the Court of Appeals panel found that the law under which Craig was charged does not inhibit free speech to an overly broad extent. The senator knew that his foot-tapping might “arouse ‘alarm, anger or resentment’” as required under the law, and also that it was an invasion of privacy.

The American Civil Liberties Union of Minnesota (ACLU-MN) filed an amicus brief in the appeal at the request of Craig’s attorneys, ACLU-MN Executive Director Chuck Samuelson told MnIndy in an interview today. Samuelson conceded that the Court of Appeals “didn’t like our arguments,” which focused on the free-speech aspects of the case. But he contends, “Their reasoning is wrong.”

They talked about the language ‘to arouse’ … that inciting language. They say [Craig] was doing it. But they ignored that the guy who started it [the airport police sergeant] was not Craig [the official charge quoted above notwithstanding].

Frankly the court is really conflicted on this one. My gut tells me they just wanted this case to go away. The ACLU’s position in these sorts of laws have been used against gay men for a long, long time. If the police were concerned about public sex in the bathroom, then they should have followed best practices of police departments — put a sign on door, send cops through … the activity will probably disappear from that restroom and move someplace else. …

This really is entrapment, in our opinion. There is a line there that we think this sergeant crossed. By [the court's] reasoning the police officer is more guilty than Craig.

This a classic first amendment case of government suppression of unpopular speech. If this is inappropriate, what’s the status in heterosexual pickup bars? They [Craig and the officer] weren’t engaging in or planning on having sex in the bathroom. They were planning it [for somewhere else].

There is a double standard. Speech is speech. This never got more than speech. You can’t regulate this speech and then not regulate the speech of heterosexual people. … We don’t have police officers posing as [sexually available] women or whatever. …  The antidote to bad speech is more speech — the sign on the door [prohibiting bathroom sex].

With this ruling, Craig regains his rightful place as Minnesota’s most prominent issue of public-sex-in-a-bathroom-stall — eclipsing the more recent occurrence at the Metrodome during a University of Minnesota football game, where a sex act actually took place in a bathroom stall.

“The conduct at the football game,” Samuelson says, “now that was conduct.”

Now the Bloomington City Council is poised to dive back into those same waters. On Sunday, Bloomington got authority from the state Legislature to impose new sales taxes that would help fund a planned Mall of America expansion. And Monday night the Council adopted new restrictions on public assemblies, in anticipation of Republican National Convention protests that could spill from St. Paul into Bloomington’s streets, hotels and the environs of the mall itself.

Minneapolis attorney Marshall Tanick tells Minnesota Monitor the convergence of new protest regulations and another round of public investment at the Mall of America may reopen issues that seemed settled after the State v. Wicklund opinion. Tanick has written frequently about the specialized field of mall law, most recently in Minnesota Lawyer, where he compared the Wicklund case to a December 2007 California Supreme Court ruling permitting public protests in malls. Along with residents of other states where courts rulings have diverged from Wicklund, Californians, he concluded, enjoy far broader free-speech rights in their shopping malls than Minnesotans.

Steven P. Aggergaard, another local attorney, delved deeply into the question of free speech in publicly funded, privately owned spaces in a 2006 law review article. He thought he saw light shining through the seeming wall the state Supreme Court erected with its Wicklund opinion. He agreed with the trial judge that the state constitution seems to offer protections for speech in places built using public funds – particularly speech directly tied to the political process, as demonstrations during the Republican convention likely would be.

“Nice try,” says Sandra Johnson, the associate city attorney in Bloomington, who prosecuted the case against the fur protesters in the 1990s and drafted the new public assembly ordinance for the city. She finds Aggergaard’s arguments “wishful thinking” and takes pride in the unanimous Wicklund ruling for which she argued. A self-professed free-speech geek whose job obliges her to approach the issue from the side of the regulators, Johnson said that beyond providing for public safety, the proposed ordinance is intended to eliminate opportunities for city staffers processing parade permits to impose arbitrary costs or free-speech limits on particular applicants.

Teresa Nelson worked on a friend-of-the-court brief supporting the protesters in the Wicklund case as a new lawyer with the Minnesota Civil Liberties Union. Now the staff attorney for the renamed American Civil Liberties Union – Minnesota, Nelson found fault with the new Bloomington ordinance as originally proposed and met with Johnson last week to suggest changes. The new version is “greatly improved,” she told Minnesota Monitor before the Bloomington City Council acted Monday, but still vulnerable to constitutional challenge on two points: requiring applicants to indemnify the city against harm, and giving the police chief the discretion to require applicants to obtain insurance for their planned events. Even if city officials have the best, most unbiased intentions, Nelson says, an insurance company could easily require certain groups to pay more for coverage. And some courts haven’t been sympathetic to the kinds of exemptions the ordinance offers for religious, educational and government applicants.

The Bloomington City Council voted 6-1 Monday to approve the revised permit requirements Johnson proposed, but not before making further changes, including several sparked by Council Member Amy Grady. Her vision of a simple, 52-mom, anti-war demonstration hit by high permit fees, insurance requirements and failing those, misdemeanor charges, seemed to turn council opinion. They removed the insurance (though not the indemnification) requirement, dropped the penalty to a petty misdemeanor, and made the protest permit fee $15 instead of $60.

Continued: Click “Read More”Background: The Wicklund case

The 10 or so fur protesters arrested for urging shoppers to boycott Macy’s inside the Mall of America just before noon on May 19, 1996, got more attention than they could have imagined. Hennepin County District Judge Jack Nordby rejected a motion from their attorney, Larry Leventhal, to dismiss trespass charges. But Nordby did so with a 62-page ruling asserting that the Minnesota Constitution protected their right to protest in a public place that had received significant public funding.

His unusual treatise on Minnesota’s higher standard of protection for free speech prompted an unusual pre-trial appeal from the prosecution and ultimately resulted in the unanimous ruling by the state Supreme Court that rejected Nordby’s argument and returned the case to his court. In his verdict at the trial shortly thereafter, Nordby lambasted the Supreme Court, and nine years later the high court’s slap still burns him. “It was a terrible, dishonest opinion that misrepresented my argument and the state constitution,” Nordby said Sunday in an interview. Leventhal, who defended the 1990s mall protesters pro bono, likewise told the Minnesota Monitor he found the Wicklund opinion “very disappointing” because it “circumvents the rights of free speech. Citizens should be able to share in the benefits if governments erect alternative Main Street areas” — such as the Mall of America.

Leventhal’s arguments lost in the state Supreme Court — resoundingly — and protesting without private permission inside the Mall of America remains illegal. But two stops up the Hiawatha Light Rail Transit Line from the mall, another privately owned public square has sprung up since the Wicklund case: a development called Bloomington Central Station. Government provided $3.5 million of the $4 million that went into the centerpiece of the 50-acre mixed-use development: a 1.9-acre, privately owned and operated plaza. Bloomington retained an easement to use the plaza as a public park. Indeed, the city’s Web site describes Bloomington Central Station Park, which opened last June, as “a public park featuring seating areas, garden rooms, water walls and fountains, paved and lighted walkways, and public art,” and Bloomington’s park and recreation department is sponsoring a public concert series there this summer. Earlier planning documents blurred the public and private to pitch the project promising a “central open plaza/park that democratically allows tenants to leverage this special asset” with “a ‘living street’ similar to a plaza or town square.” Both attorneys — Bloomington’s Nelson and ACLU-MN’s Johnson — found the prospect of applications for public assemblies there intriguing from a free-speech standpoint.

With all the legal and linguistic line-blurring it’s not surprising that, as urban expert Judith Martin observes, most Americans are confused about what is public space and what is not, and where their free-speech rights seem to apply. (Martin, who chairs the urban studies department at the University of Minnesota and long served as president of the Minneapolis City Planning Commission, testified as an expert witness in the Wicklund case.) The trend among governments and developers, Martin told the Minnesota Monitor, is “to reduce the possible spaces where that kind of perceived freedom is actual freedom.”
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