Jan. 25 (Bloomberg) -- You enter the stall of a department store bathroom to use it for its intended purpose. What you don't know is that a cop and a store employee are peering at you through a ceiling vent.

Would you find that disturbing? When you locked the stall door, did you assume sufficient privacy to do what most of us prefer doing without an audience?

Any reasonable person would, the Minnesota Supreme Court ruled in a 38-year-old old case revived and ridiculed because of Senator Larry Craig's, um, brush with the law.

The court said in 1970 that police conducted an unreasonable, and therefore unconstitutional, search when they spied on men using a restroom in a Montgomery Ward store in St. Paul.

Store personnel had noticed a hole, 2½ inches in diameter, in a stall divider. Suspecting it had been cut for randy reasons, a store employee and police set up surveillance.

Who knows how many men unwittingly dropped their pants under the government's watchful eye before two adjoining stall occupants confirmed suspicions. That is, the hole was used for anonymous oral sex.

``Revolting to most people'' is how the Minnesota Supreme Court described this activity. The justices sympathized with the store's need to protect customers, especially young ones, from exposure to such behavior.

But why not simply repair the hole? Why spy on the very patrons the store was trying to protect while hoping people would actually have sex to catch them at it?

Consensual Sodomy

Police charged consensual sodomy, which could still be prosecuted back then. When one of the men appealed his conviction, a divided state Supreme Court tossed out the evidence and the conviction, too.

The court said people in bathroom stalls can expect privacy when they shut the door. This is hardly a remarkable ruling. Courts all over the country have thrown out drug cases and sex convictions for precisely that reason.

That doesn't stop a cop from busting down the door if you drop a bag of cocaine, emit moans or other sounds not normally associated with bathroom business or display an unusual number or arrangement of feet on the floor.

The Minnesota ruling was no endorsement of men's room sex any more than courts endorse murder when they toss out a confession beaten out of a suspect by police. That is just the way courts curtail police abuse.

Flock to the WC

But given a clamor over the American Civil Liberties Union's use of that ruling in the Craig case, you would think the court and the ACLU had urged Americans to show their patriotism by flocking to bathrooms for fervid sexual encounters, preferably with strangers.

``ACLU: Sex in PUBLIC Bathrooms a Constitutional RIGHT!'' declares uspoliticsonline.com.

``The ACLU wants to have that kind of activity in public bathrooms,'' Bill O'Reilly declared on his FOX News show. ``They think that's a good thing.''

Let's be clear here. The 1970 ruling didn't say that bathroom sex is legal -- or illegal. It said that the cops' spying was illegal.

``The ACLU is in no way advocating sex in public bathrooms,'' the organization said in a statement issued as news of its brief spread.

Engaging the Enemy

And yet the group invited confusion and invigorated its enemies by arguing a point it didn't need to make. The flap that resulted overshadows the other points in the ACLU brief that are completely on target, quite legitimate and far less controversial.

I say that because I have previously made the same points. For starters, Craig's peculiar hand and foot movements while in a bathroom stall don't constitute a crime.

Even if he intended a silent sexual proposition, no law exists nor should one that criminalizes a request for noncommercial sex between adults.

So the cops relied on a disorderly conduct charge, which outlaws any conduct that could ``arouse alarm, anger or resentment in others.''

I've probably written columns that violate that law. I know I've gotten e-mail that does.

The ACLU legitimately argues that the law is too broad to be constitutional.

Remember, no one was having sex when Craig was arrested for disorderly conduct. No private parts were exposed. No words were spoken.

O'Reilly Says So

Even O'Reilly agrees that the case against Craig is ``bogus.''

The ACLU makes all those points, but doesn't stop there. Its brief says: IF Craig had clearly proposed sex, and IF he meant to do it in the men's room, and IF the disorderly conduct law constitutionally applies (none of which are likely) -- THEN the 1970 ruling would have protected him from prosecution, because what happens in a restroom stall is a private matter and therefore legal.

First, that stretches the 1970 ruling, which dealt with police conduct. Second, is the ACLU trying to look as ridiculous and oblivious to mainstream values as its enemies like to say it is?

Lawyers often argue their case to the very last point. In this case, the ACLU brings up the public or private nature of bathroom sex as one of its minor points, having argued the big ones.

It does so because the government can criminalize a solicitation for a criminal act, the group acknowledges, and whether a sexual proposal is criminal could hinge on whether public or private sex was intended.

``Since there is no evidence that Senator Craig's alleged solicitation was for sex in a public place, the solicitation could not be constitutionally punished,'' the ACLU says.

In fact, there is no evidence he proposed any sex, any place. And even if he had, so what? He didn't engage in it.

But if he had, then we could have a real debate over how much privacy a bathroom stall offers.

(Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.

Last Updated: January 25, 2008 00:24 EST