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Will Craig thank the ACLU?

The attempt by Idaho Senator Larry Craig to withdraw his guilty plea in Minneapolis has picked up a major ally. But will he thank the American Civil Liberties Union?

The ACLU’s amicus brief (a copy is posted on the Spokesman-Review web site, and probably elsewhere too) actually has a strong case to make against the Minnesota law under which Craig was convicted. It starts this way.

The Minnesota law under which the defendant in this case was charged, and to which he pled guilty, applies both to speech protected by the United States Constitution, and to speech which is unprotected. That is true of the very words of the law, and it is true of its application in the context of this case.
The First Amendment and the Due Process Clause of the Constitution require that a law which covers both protected and unprotected speech:
1. not be so overbroad as to pose a real and substantial threat of ensnaring
protected as well as unprotected speech;
2. provide clear standards, to law enforcement and to the public, about where it
may be legitimately applied and where it may not;
3. be well crafted to serve the legitimate regulation of speech and not to ensnare
protected speech.
It is very doubtful that, on the record as it appears so far, the prosecution in this case can meet any of those requirements. Given that, there is a very real possibility that this defendant pled guilty under circumstances in which the Constitution would not have permitted a conviction. That strongly suggests that in the interests of justice, the defendant should be able to withdraw his plea.
But there is an even more powerful reason to relieve the defendant of his plea
here. Almost 30 years ago, the Minnesota Supreme Court ruled that the law involved here was unconstitutionally overbroad and vague. It preserved the law by restricting its application to “fighting words,” a restriction which would almost certainly make any conviction in this case a near impossibility.

Changes nothing politically. Could be very interesting legally.

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