Foot tapping is not free speech?

Over a year has elapsed since the arrest of Idaho Republican Sen. Larry Craig at the Minneapolis-St. Paul airport for soliciting sex using hand gestures and foot tapping in a bathroom stall. Craig’s lawyer Billy Martin resurrected the case this past September arguing First Amendment rights were at stake and that Craig‘s sexual gestures were protected (Foot). Craig makes the fundamental argument that the foot tapping and hand gestures were not offensive to the public since only an undercover officer spotted him. Even the argument that hand and foot gestures were non-offensive and did not breach the peace by stirring violence are valid reasons for Craig to defend his freedom of speech. I will agree with prosecuting attorney Chris Renz, who dismissed Martin’s argument that foot tapping is protected under the First Amendment to make it clear sexually themed expression is not always protected if the intent is to offend and if there is no way not to offend someone. Then, I will attempt to analyze why the Court disagreed by bringing up similar cases involving sexually themed expression. I will address the distinction between sexually themed expression demonstrated in public by a publicized political figure versus a joe-schmoe citizen.

A basic concept brought to light by the First Amendment is that everyone carries a shield of rights that provides a barrier between the speaker and government. As long as one’s free speech doesn’t come into conflict with another’s free speech, he/she will always stay protected in a bubble that’s unsusceptible to governmental interjections. Craig’s lawyer certainly thought he carried the shield with him when he used the “no one saw it” argument to justify that Craig’s sexual gestures did not offend anyone. I would have to agree that out of context, someone can make hand motions to direct people’s attention or call them over and tap one’s foot impatiently to show that there is a long wait. These two gestures, unlike the unmistakably unquestionable symbol of “shooting the bird” or “flicking one off” bear no offensive innuendo. There’s no historically offensive or universally repugnant meaning attached to these actions. Also, these gestures do not breach the peace (Texas v. Johnson). This means Craig’s acts did not stir any violent and angry feelings because the expression itself is not meant to cause a fight but still a surreptitiously crass way to catch someone’s attention enough to convey the message that he is seeking individuals who want to have sex.

However, there’s suppressed evidence in the aforementioned argument that since no one saw the sexual gestures, the sexual gestures bore no offense. If the argument was true, one could arguably say that since no one saw someone walking around nude in a public area then it was perfectly protected free speech and that action wasn’t offensive because people, the ones that take offense, were not present at the time and location. That doesn’t rid the idea of walking around in the nude in public as acceptable or protected because there was intent to offend someone. One does not decide to walk around nude in public in hopes of not offending anyone, but they actually accept that they are offending people. Likewise, there was intent behind Craig’s sexual gestures. He stood inside a bathroom stall to try luring people into having sex. The fact that there was intent and the notion that Craig inevitably accepted that his gestures would offend some people in a public restroom align the constellations here. Craig is intentionally using sexually themed expression to lure those who want what he has to offer and to offend those who would rather walk around wearing blind folds than see a political figure wiggling his finger at an innocent passerby in an airport restroom.

Craig’s case emphasizes the power behind intent and inevitably offending someone. There’s no way that he didn’t consider the fact that his gestures would offend some amid his goal to draw others. According to the Bethel School District v. Fraser case, the student giving a speech at a school-sponsored assembly recited his words in a manner that alluded to sexually themed expression. In his speech, he used “an elaborate, graphic, and explicit sexual metaphor" (Bethel, 5) to convey lewd and indecent speech. Although Craig used gestures and not words, he basically delivered a similar degree of offensive speech to people who understood what his sexual gestures indicated. When there’s no questionable or ambivalent ideas about the meaning of a gesture, then one can say that he or she was offended by the speaker. However, let me make clear that free speech does not give preferential treatment to those in political power. That is, they cannot use the argument that they are an important political figure to avoid the consequences of indecent speech. Also, people must be prepared to be offended if they interfere with the freedom of speech realm. For instance, in the Cohen v. California case, Cohen’s message on his jacket that read “F*** the Draft” could be read as an offensive, derogatory comment directed toward the government (Cohen). However, the government cannot bring a lawsuit against him because he had just as much freedom of speech to express as the government does. The fact that the f-word refers to sexually themed expression was not enough to condone Cohen from wearing the jacket in public. We could say Cohen was protected from the government's infringment on his First Amendment. Going back to the Craig case, the senator is unable to redeem himself for engaging in sexually themed expression because in his case, he is representing the government. When Craig tried to flash his identification card at the undercover police officer, he bascially demonstrated that he wanted preferential treatment. However, what he really wanted was protection under the First Amendment. In a way, Craig sought to retain the dual roles of a political figure and citizen status. The government is not supposed to act as an agent that takes advantage of the freedom of speech at the expense of its citizens or substitute oneself to the status of a citizen. Rather government should protect the free speech that the people throw at government in an effort to recognize the exercise of grassroots politics. So from what I see, the government cannot use the people’s shield, the First Amendment, as their own weapon of defense.

The reason why Craig’s political image affects whether or not his freedom of speech should be protected is because prominent leaders run the risk of losing face for the entire government. Some bitter people may use vulnerable politicians or leaders in government as the epitome of government’s worthlessness or the root of all evil based on their personal mistakes or misconduct. A line should be drawn between playing the dual role of a political figure and citizen for the sake of preventing the entire governmental realm from losing its face as an ethical institution that looks out for the interest of its citizens. Thus, protection under the First Amendment should be acquiesced wholly to the people's discretion and not used by government for a last minute quick fix up when they make mistakes in public.

Sources:

http://politicalticker.blogs.cnn.com/2008/09/10/foot-tapping-protected-by-first-amendment-craigs-lawyer-argues/ (Foot tapping protected by First Amendment, Craig’s lawyer says)

http://www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=12238 (Texas Court of Appeals, Third District, At Austin)

http://en.wikipedia.org/wiki/Texas_v._Johnson (Texas v. Johnson)

Cohen v. California (Jour 199 book)

Bethel School District v. Fraser (Jour 199 book)