The American Civil Liberties Union has submitted a 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.”

Senator Craig has sought to undo his guilty plea in an airport sex sting by claiming that he admitted to the charge in a panic to avoid triggering a story about his sexuality in his hometown newspaper.

Craig’s attorneys said that “faced with the pressure of an aggressive interrogation and the consequences of public embarrassment, Senator Craig panicked and chose to plead to a crime he did not commit.”

Craig’s affidavit said he decided on the day of his arrest to plead guilty to whatever charge was eventually filed against him.

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.

Solicitation for private sex, regardless if it occurs in a bar or a restroom, is protected speech under the First Amendment of the US Constitution.

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, says the ACLU.

Alternatively, 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.

In fact, many 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 behavior, rather than destroying the lives of people who might have no intention of doing anything illegal.”

Senator Craig returned to work at the Senate yesterday.