So says a court of appeals in the State of Minnesota by way of denying U.S. Senator Larry Craig (R-Wide Stance) his petition to reconsider a district court's denial of Craig's earlier motion to withdraw his guilty plea to disorderly conduct.
Sen. Craig further argued that the disorderly conduct statute is unconstitutional on First Amendment grounds because it prohibits expressive conduct, in this case, communication by foot tapping to an undercover police officer in an adjacent bathroom stall.
Rather, the said communication was unwanted, observed the appeals court, and the privacy interest against unwanted communication "is very strong in a stall in a public restroom."
Invasion of privacy, therefore, equals disorderly conduct, the court concluded. Craig conceded that foot tapping is not "fighting words."
Craig v. Minnesota (.pdf; 10 pgs.)