That’s the question floating around the blogosphere today, and I think the people who’re asking it kind of have a point.

First, we have this from Volokh’s Larry Carpenter about Minnesota law:

From the arrest report, here’s what Craig allegedly did: (1) put a duffel bag at the front of his stall; (2) peered through a crack into an adjoining stall; (3) tapped his foot; (4) moved his shoe over until it touched an officer’s; and (4) ran his fingers along the underside of the stall divider. That’s it.

Given the long history of police fabrication of evidence and entrapment of gay men in these sting operations, there should be no presumption that the officer’s version of events is correct. But assuming for the sake of argument that Craig did everything the officer alleged, how was it the basis for a criminal charge that could get him a $1,000 fine and/or ten days in jail?

Disorderly conduct is a notoriously nebulous crime, allowing police wide discretion in making arrests and charges for conduct or speech that is little more than bothersome to police or to others. The “disorderly conduct” statute to which Craig pleaded guilty provides that one who knowingly “[e]ngages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others” is guilty of the misdemeanor of disorderly conduct. Minn. Stat. § 609.72, subd. 1(3) (2004).

So let’s set aside for a moment that fact that Craig inexplicably pleaded guilty to the charges that probably weren’t correct anyway, and let’s take a look at the actual act itself. What exactly happened here? There was no sex, no dirty talk, no flashing. Nothing. Was it offensive, abusive, boisterous, noisy, offensive, obscene, abusive or enough to arouse alarm, anger or resentment in others? Well, maybe the last three, but come on…

Was it creepy? You bet. But it appears as if Larry Craig got arrested for merely putting a vibe out there. And since I think it’s obvious that he was trying to solicit a little attention, should that really be illegal? What if he would have asked the police officer if he wanted to have sex in his hotel room? Would that be illegal? Sure, he tried this in a public restroom, but is that an arrestable offense? Apparently the arresting officer seemed to think so, but it does seem a bit overbearing.

Talking Points Memo has this to say:

Leering stares, foot tapping, a lingering presence. Are any of those, even taken together, what most reasonable people would call criminal? Is it because they happened in a bathroom? God knows they happen every night in bars and other public spaces, among gays and straights.

The folks over at Slate had an email discussion about this and I like John Dickerson’s line the best:

Dickerson: I’m a fan of someone sticking up for Craig. There’s more inappropriate airport behavior in the security pat down line.

Yeah, so maybe I’m missing something, but I tend to agree with the “Craig shouldn’t have been arrested” crowd. Put aisde the question of whether or not he is indeed gay and could be a raging hypocrite. That’s not the point.

Meanwhile, courtesy of TheNewsRoom

I put it to you fine readers…should Larry Craig have been arrested?

Politics Should Larry Craig Have Been Arrested?