ST. PAUL, Minnesota (CNN) - In an effort to persuade a three-judge panel to throw out Sen. Larry Craig's guilty plea, his attorney suggested Wednesday that his foot tapping in an airport men's room may have been protected by the First Amendment right to freedom of speech.
The Idaho Republican was arrested in the Minneapolis-St. Paul airport in June 2007, after an undercover police officer accused him of soliciting sex by using hand signals and tapping his foot in a bathroom stall.
Two months after his arrest, and without consulting a lawyer, Craig later pleaded guilty to a misdemeanor charge of disorderly conduct.
In addition to suggesting that First Amendment may be involved, Craig's lawyer, Billy Martin, also argued before the Minnesota Court of Appeals panel that no one besides the arresting officer saw the hand signals and foot tapping, which would mean no one else was offended by the behavior and, thus, make the disorderly conduct charge invalid.
Martin also suggested that the judge who previously heard Craig's case had mishandled his attempt to have his guilty plea thrown out.
Prosecuting attorney Chris Renz dismissed the idea that Craig's foot tapping was covered by the First Amendment, arguing that no one but the officer in the adjoining stall could have heard the tapping.
In February, the Senate Ethics Committee issued a "letter of admonition" to Craig in connection to the case.
In the letter, the committee accused him of improper conduct and said his actions reflected "discreditably" on the chamber.
The committee also criticized Craig for using more than $200,000 from campaign funds to pay legal fees related to his case and for flashing his Senate business card at the officer who arrested him. The letter said that move could be seen as an improper attempt to receive "special and favorable treatment."
Craig initially said he would resign after the incident was reported in the media but later decided to remain in the Senate and fight to have his guilty plea thrown out. But the three-term senator did not seek re-election this year and will retire when his term ends in January.