"Legitimate expectation of privacy," in my understanding, limits the government's power to encroach on me -- that's Fourth Amendment reasonable search and seizure language. What constitutes something in which I have a legitimate expectation of privacy for Fourth Amendment purposes (these days very little) does not limit the ability, power, or right of private citizens encroach on me -- constitutional; rights, the Thirteenth Amendment apart, pretty much don't apply to private actors. So I think that is the wrong analysis.
Btw, I certainly have no legitimate expectation of privacy in a _public_ restroom. Short of some law that I doubt exists anywhere, I don't even have a right to have a door on the stall. If the cops search me (with probable cause) while I am on the can and find some, say, drugs, whether there is stall door or no, I cannot defend (or have the evidence suppressed) by saying I have a LEP because I was relieving myself.
Now, LEP aside, disorderly conduct is a catch-all statute that the cops regularly use against people who haven't done anything specifically wrong. Although the constitutionality of such statutes has been regularly upheld in particular contexts, I think it is obvious on its face that the state has no power to criminalize behavior that others, even the mythical "reasonable person," may find merely annoying, alarming, or offensive, regardless of whether that behavior is itself protected speech.
Behavior that is threatening or harmful is another matter, but (1) the range of behavior that the mythical "reasonable person," may find merely annoying, alarming, or offensive is so broad that such a prohibition is unconstitutionally vague;(2) I just don't think there's any basis for a right, enforceable by criminal sanctions, not to be annoyed, alarmed (short of threat), or offended; and (3) such statutes are an open invitation to the police, and used as such, to engage in unconstitutional behavior, harass demonstrators for political speech, single out gays in ways that are now unlawful, and the like.
As a matter of law, courts won't find disorderly conduct laws unconstitutional on their face, although they should; but they might as applied, and if laws are being used to enforce now unenforceable homophobic morals laws, they should in cases like this, and some even might.
--- "Nick C. Woomer-Deters" <nwoomer at gmail.com> wrote:
> On 8/30/07, BklynMagus <magcomm at ix.netcom.com>
> wrote:
>
> > I have never understood the right not to be
> > "disturbed" by the behavior of others. It is
> > like people want the world to be child-proofed
> > for their peace of mind. They cannot abide
> > witnessing anything that does not conform to
> > their operating system: women should not wear
> > the veil, it disturbs me. Women who do not
> > wear the veil disturb me. Men should not wear
> > their pants below their waists. Men should not
> > wear floodwaters. Who the fuck cares? Society
> > is awash in a sea of weak sisters who need to be
> > presented with a continual stream of affirmation
> > of their worldview. What happened to pluralism?
>
> Amen to that. But this is not such a case: Look my
> first post in this
> thread and read the statutes Craig was charged with.
> Craig was
> accused of invading someone else's legitimate
> expectation of privacy
> in a public restroom stall, and I do not see much
> wrong with
> criminalizing such invasions.
>
> What disturbs me about this whole affair is the way
> an otherwise
> legitimate law is being used to specifically target
> gay men. In many
> ways it is similar to the use of laws that provide
> harsher sentences
> for crack cocaine are used against black men.
> *This* ought to be what
> offends us; not the fact that the law exists b/c IMO
> it's pretty
> reasonable on its face.
>
> > Yes, that is what we are talking about: whether or
> > not a person can be charged with a crime for
> > offending someone.
>
> The answer in Minnesota is YES if the behavior is
> not constitutionally
> protected and provided that MN's statute is not
> unconstitutionally
> vague. Let's not mix up our is/ought distinctions
> here.
>
> > Another unspoken part of the issue is straight
> men's
> > uncomfortableness with being the object of sexual
> > attention. If a man is cruised in a men's room
> and
> > he is not interested that is all he has to stay.
> No
> > need for indignancy. Just a polite "No thank you"
> > and that is it. If the queer were to persist in
> his
> > attentions, then that could be considered
> harrassment,
> > but the initial approach is only disturbing if the
> > object of desire is sexually uptight. His
> discomfiture
> > deserves no more consideration than that of a
> racist
> > who is upset if a black person takes a seat next
> to
> > her on a bus.
>
> I agree -- provided the dude being cruised isn't in
> a stall. The
> whole purpose of the stalls is to provide privacy
> while you're taking
> a shit. When you enter a stall your expectation of
> privacy increases
> substantially. The expectation is that you will be
> able to take a
> dump without being subjected to any intentional
> gazing or physical
> interference such as someone in an adjacent stall
> putting his hand in
> your stall. Straight people expect this. Queers
> expect this. We
> have laws established that protect this expectation.
>
> > > Again, Craig was being accused of far more than
> merely
> > "hitting on" the cop.
> >
> > What did he do beyond that? He was trying to find
> out if
> > the cop was interested in a little tearoom joy.
> If proper
> > etiquette had been followed, the cop would simply
> have
> > indicated no interest and Craig would have moved
> on. But
> > the cop was trying to enrap him.
>
> According to the police report, Craig blatantly
> peered into the stall
> and put his hand under the divider. He didn't ask
> the cop if he
> wanted to fuck (that would have been
> Constitutionally protected),
> rather he engaged in behavior that reasonable people
> of all genders
> and sexual preferences in our culture would consider
> an invasion of
> their personal privacy.
>
> > But a queer would not know if you were there for a
> poop
> > or a suck without looking. If you are that
> needful of
> > privacy, either avoid public men's rooms or hang a
> strip
> > of toilet paper in the crack to indicate that you
> are
> > there for shit and not sex. Is that so difficult?
>
> What is so wrong with expecting others to respect
> your privacy while
> you're shitting in a public restroom stall? Why
> can't a dude who's
> cruising just wait for people to finish their
> business and then ask
> for a suck or make a gesture indicating that he's
> looking for a suck?
>
> > So if something has been called a crime just go
> along with it?
>
> No one is saying that. You said Craig didn't commit
> a crime. I say he
> did because MN law says so. I'm nitpicking this
> point because I think
> it's important that we realize something can be
> lawful and still
> wrong. By claiming that something must be right to
> be lawful, one
> clouds the role legal practices play in reinforcing
> a grossly unjust
> social order.
>
> > > The question of whether the activity in question
> *should* be
> > crime is a different one.
> >
> > Agreed, and if it should not be a crime it should
> be campaigned
> > against with vigor.
>
> ...Provided there are not more important things to
> be campaigning
> against. Repealing laws that protect traditional
> ideas about what
> constitutes a criminal breach of personal privacy in
> bathroom stalls
> is really far down on my list, and it should be down
> on yours too.
>
> > > *But*, I think most Americans would be offended
> by the type of
> > behavior described in the Craig arrest report
> regardless of the
> > gender of the person engaging in such behavior.
> >
> > I disagree. If bathrooms were not segregated by
> sex, and a woman
> > peeped a straight man's stall, he could be in the
> middle of the
> > greatest, most sacred dump of his life, and he
> would flirt with
> > her.
>
> Not me: I would be embarrassed, humiliated and
> annoyed. In fact, it
> would probably be worse if I was sexually attracted
> to the person
> looking at me. Call it bodily insecurity or
> whatever. I like to poop
> by myself. I bet most American queers do too.
>
> > > Rightly or wrongly, we are conditioned to
> strongly prefer to
> > shit undisturbed.
> >
> > Then what is needed is a less sexually uptight
> citizenry and not
> > the criminalization of innocent sexual behavior.
>
> Activity which invades others' legitimate
> expectation of privacy is
> not innocent. In fact, I don't see much of a
> distinction between
> peering into someone's bathroom stall and putting a
> camera in his
> bathroom at home.
>
=== message truncated ===
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