The liberal American Civil Liberties Union (ACLU) has come out in support of conservative U.S. Senator Larry Craig who was arrested in a police public toilet sex sting.

On Tuesday, the ACLU submitted a friend-of-the-court brief to a Minnesota District Court urging it to allow Senator Larry Craig to withdraw his guilty plea because the secret sting operation used to arrest him was likely unconstitutional.

“The real motive behind secret sting operations like the one that resulted in Senator Craig’s arrest is not to stop people from inappropriate activity. It is to make as many arrests as possible – arrests that sometimes unconstitutionally trap innocent people,” said Anthony Romero, Executive Director of the ACLU. “If the police really want to stop people from having sex in public bathrooms, they should put up a sign banning sex in the restroom and send in a uniformed officer to patrol periodically. That works.”

Craig is aiming to withdraw the guilty plea to a charge of disorderly conduct after police claimed that he had solicited sex from a plainclothes police officer in June. Craig has claimed that he only entered the guilty plea in an effort to handle the matter “quickly and expeditiously.”

In its brief, the ACLU argues that the government can arrest people for soliciting public sex only if it can show beyond doubt that the sex was to occur in public. It also said that solicitation for private sex, regardless if it occurs in a bar or a restroom, is protected speech under the First Amendment. It added that, when free speech rights come into play, police enforcement actions must be “carefully crafted” so that they don’t unnecessarily ensnare people who are engaging in constitutionally protected speech.

The secret sting operation used by the police to arrest Senator Craig was not “carefully crafted” to avoid ensnaring innocent speech, said the ACLU. It added that posting a sign that the restroom is being monitored is an effective means of deterring public sex without risking trampling on free speech rights and illegally trapping someone who might not intend to have sex in public in the first place.

A number of U.S. law enforcement agencies, including the Minneapolis Police Department and the U.S. Department of Justice, recommend signs rather than secret sting operations as enforcement mechanisms.

“Senator Craig has not always been a great friend of civil liberties, but you shouldn’t have to endorse the civil liberties of others to keep your own,” said Romero. “Government should make public restrooms safe for all, but it should do so in a manner that is really designed to stop inappropriate behaviour, rather than destroying the lives of people who might have no intention of doing anything illegal.”

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