the appeal in the larry craig “wide-stance” case has gotten little attention locally, but minnpost offers a nice review of the legal issues and a link to a webcast of the proceedings. i was especially interested in the arguments offered in the ACLU’s friend of the court brief:

In short, the ACLU brief claims that Craig’s alleged attempt to solicit sex by nonverbal means was constitutionally protected. The ACLU cites both Minnesota and U.S. Supreme Court precedents that support treating certain types of physical conduct the same as language, thus making Craig’s actions permissible, protected expression.

The ACLU brief then attempts to narrow the scope of the disorderly conduct law, stating that the statute has already been held to be unconstitutionally overbroad by Minnesota courts. For instance, a 1978 Minnesota Supreme Court decision held that the government “may not criminalize expression merely because it is offensive, alarming, angering, or disturbing.”

Finally, the ACLU maintains that Craig allegedly invited Karsnia to engage in conduct which is not, in itself, a crime. The brief states that if Craig’s invitation was to have sex in a restroom stall, then that conduct would be protected under State v. Bryant, a 1970 Minnesota Supreme Court decision which holds that “individuals who engage in sex in closed stalls in public restrooms have a reasonable expectation of privacy.”

after today’s proceedings at the minnesota court of appeals, the judges have 90 days to decide whether the hennepin county court erred in denying the withdrawal of senator craig’s guilty plea. i can’t imagine anyone wants a trial on the bathroom incident, but that remains a real possibility.