Doe, John v. City Lafayette IN ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3624
JOHN DOE,
Plaintiff-Appellant,
v.
CITY OF LAFAYETTE, INDIANA,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana,
Hammond Division.
No. 00 C 76—Allen Sharp, Judge.
____________
REARGUED EN BANC JANUARY 8, 2004—DECIDED JULY 30, 2004
____________
Before FLAUM, Chief Judge, and POSNER, COFFEY,
EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P.
WOOD, EVANS and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. In February of 2000, the City of
Lafayette, Indiana, issued John Doe, a convicted sex offender,
a letter, informing him that he was banned from all public
parks under the City’s jurisdiction. In November of 2000,
Mr. Doe initiated this action, alleging that the ban violated
his rights under the First and Fourteenth Amendments of
the Constitution of the United States. The United States
2 No. 01-3624
District Court for the Northern District of Indiana granted
summary judgment to the City. For the reasons set forth in
the following opinion, we now affirm the judgment of the
district court.
I
BACKGROUND
A. Facts
John Doe has a long history of arrests and convictions for
sexually related crimes. In most of these instances, children
were the victims. His criminal history includes convictions
for child molestation, attempted child molestation, voyeur-
ism, exhibitionism and peeping. These crimes date back to
1978, when Mr. Doe went into a locker room at a local
school, pulled down the swimsuit of a ten-year-old boy and
performed oral sex on him. The next year, Mr. Doe forcibly
performed oral sex on a twelve-year-old boy. He approached
the boy in the parking lot of a local school and asked the
boy to unzip his pants; after the boy refused, Mr. Doe un-
zipped the boy’s pants and performed oral sex on him. In
1985, Mr. Doe admitted to peeping into windows of an
apartment of a female at 1:20 a.m. In 1986, Mr. Doe admitted
to masturbating in full view of three children who lived in
the home next door. During questioning on this incident,
the police also asked Mr. Doe if he recalled “masturbating
on the back porch with one of the next door neighbor child-
ren and another friend out in the back yard.” Reed Aff.
Ex.D. Mr. Doe answered: “That’s possible.” Id. In May of
1988, Mr. Doe was arrested for peeping into the windows of
an apartment in West Lafayette. In October of 1988, he
admitted to standing outside a house, looking through a
window at what he perceived to be a teenage boy and
masturbating with his penis exposed. He also admitted this
No. 01-3624 3
behavior occurred on a number of previous occasions in
then-recent history. Mr. Doe explained to police: “[I]t’s
happened times before, you know that. I’ve told you this
before I’m still seeing a therapist and working on it, but
I . . . . I can’t make any excuses. I mean ahh it just happens.
Ahh.” Reed Aff. Ex.F. In May of 1990, Mr. Doe was arrested
for public intoxication and resisting law enforcement
following a report that he was tapping on the rear window
of a female’s house. In October of 1990, Mr. Doe whistled to
three teenage boys—ages ten, fourteen and fifteen—and
motioned for them to come into an alley near the Village
Pantry. See Reed Aff. ¶ 4(h). He asked the boys if they wanted
to receive oral sex, and he also unzipped his pants. The
three boys fled the area. This incident resulted in Mr. Doe’s
last conviction, which was finalized in 1991. Mr. Doe was
placed on house arrest from January of 1992 to January of
1996. See Doe Dep. at 17. He then was on probation until
early January of 2000. See id.
We now come to the incident that precipitated the situ-
ation before us. In January of 2000, Mr. Doe’s probation
officer, Joe Hooker, received a call from a “confidential
source,” informing Officer Hooker that Mr. Doe “had been
‘cruising’ parks and watching young children.” Reed Dep.
Ex.1. The anonymous caller recounted an incident that oc-
curred earlier that January. Mr. Doe’s own description of
this episode, in his deposition, vividly describes what took
place:
A. Well, I parked my car at Parkside Pharmacy across
from Murdock Park. I saw three males and two fe-
males on the ball diamond there at Murdock Park.
Q. Kids?
A. Possibly early to mid teens, so yeah, they were under-
age. I walked over to the ball diamond. By the time I
4 No. 01-3624
got over there, they were behind the—there’s a drop-
off, a valley or whatever down behind the ball dia-
mond that leads over to Ferry Street, I believe. They
were down in that area, and I stood there and
watched them for a while, probably 15 minutes,
maybe a half-hour, I said to myself: I’ve got to get out
of here before I do something, I left.
...
Q. What was your purpose in going to Murdock Park
that Saturday evening?
A. Well, as I was going home that night, instead of going
my usual route, I took a side street, and one side street
led to another, led to another, led to another, and
before I knew it, I was at Columbian Park, and so then
I decided just to go over to Murdock Park. I don’t
know. I guess I was, for whatever reason, I was in the
mood of cruising.
Q. What do you mean by “cruising”?
A. Just looking to see what’s there.
Q. Looking for children?
A. Mostly, yeah.
Q. Were you having those urges that night?
A. Yeah, you could probably say that, yeah, yes.
Q. When you got out of the car and walked into
Murdock Park, what were you thinking about?
...
A. When I saw the three, the four kids there, my thoughts
were thoughts I had before when I see children, pos-
sibly expose myself to them, I thought about the pos-
sibility of, you know, having some kind of sexual
No. 01-3624 5
contact with the kids, but I know with four kids there,
that’s pretty difficult to do. It’s a wide open area.
Those thoughts were there, but they, you know,
weren’t realistic at the time. They were just thoughts.
Doe Dep. at 27-29.
Officer Hooker forwarded the information from the anon-
ymous caller to the Lafayette Police Department. Robert
Reed, Lafayette’s Police Chief, was aware of Mr. Doe’s
criminal history, and he initiated discussions with various
officials regarding the appropriate response. He contacted
Vicki Mayes, Superintendent of the Lafayette Parks and
Recreation Department, and Dr. Ed Eiler, Superintendent of
the Lafayette School Corporation, and advised them to issue
a ban ordering Mr. Doe not to enter the City’s public parks
or schools. Chief Reed explained that he gave this advice
“because of the duty I have to protect the citizens, and
specifically the children of this community, from the im-
minent danger posed by John Doe.” Reed Aff. ¶ 5.
On February 2, 2000, Superintendent Mayes sent a letter
to Mr. Doe informing him that he was prohibited from en-
1
tering the City’s parks, and, on February 3, 2000, Dr. Eiler
sent Mr. Doe a letter informing him that he was prohibited
from coming on school grounds. Neither of the bans, which
are still in effect, have a termination date nor are they
limited to certain geographical areas within the public prop-
1
The City has a variety of parks, some large and some small,
some in neighborhoods and some not, some developed and some
undeveloped. Within the parks are numerous traditional play-
ground areas, softball fields, swimming pools, a zoo and a golf
course. The City’s park system also hosts a range of activities,
including birthday parties, family reunions and an annual Easter
egg hunt. See Mayes Dep. at 4-10.
6 No. 01-3624
erty at issue. In this case, Mr. Doe challenges only the ban from
the public parks, and not the public schools. He claims that he
would like to go to the parks to play softball, watch the Colt
2
World Series, attend a company outing if one takes place at
one of the City’s parks and take walks with friends. See Doe
Aff. ¶ 7. However, Mr. Doe also testified that, other than the
January 2000 evening in question, he has not been in a city
park since his 1990 arrest. See Doe Dep. at 30.
Mr. Doe is currently continuing therapy under the super-
vision of Dr. Patricia C. Moisan-Thomas. From 1986 until his
1990 arrest, he saw Dr. Moisan-Thomas “off and on . . .
probably maybe once a month.” Doe Dep. at 31. From 1990
to present, he has seen her “pretty much on a weekly basis.”
Id. Mr. Doe also currently attends a self-help group for sex-
ual addicts, and, at some point after January of 2000, he
voluntarily began taking medications to control his sexual
urges. See Moisan-Thomas Dep. at 20. Mr. Doe and Dr.
Moisan-Thomas both testified that “Mr. Doe, like any other
addict, does not have control over his thoughts” and that he
“will always have inappropriate thoughts.” Moisan-Thomas
Aff. ¶ 9; Doe Aff. ¶ 6 (“I recognize that I will always have
inappropriate thoughts regarding having sexual contact with
children.”). Mr. Doe and Dr. Moisan-Thomas also believe that,
in the last ten years, he has learned how to resist these
inappropriate urges. Moisan-Thomas Dep. at 27, 33-34; Doe
Aff. ¶ 6. In this regard, Dr. Moisan-Thomas opined that the
January incident in the park was a “good thing,” at least for
Mr. Doe, because “[i]t gave him the opportunity to use his
relapse prevention program and to learn about his limits.”
Moisan-Thomas Dep. at 27-28. Still, Dr. Moisan-Thomas
readily concedes that she can give “absolutely no[ ]” guar-
2
According to the record, “Colt” is a baseball “league of young
fifteen, sixteen, [and] seventeen-year-old males.” Mayes Dep. at 6.
No. 01-3624 7
antee that Mr. Doe will not reoffend, and, when asked if
sexual addicts, such as Mr. Doe, “do fall down that slippery
slope sometimes,” Dr. Moisan-Thomas responded: “Some-
times they do.” Id. at 35.
B. District Court Proceedings
On September 14, 2001, the United States District Court
for the Northern District of Indiana granted summary judg-
ment to the City on Mr. Doe’s claims under the First and
Fourteenth Amendments. See Doe v. City of Lafayette, 160 F.
Supp. 2d 996 (N.D. Ind. 2001).
1. First Amendment Claim
The district court began by noting that “[o]rdinarily, in
order for a violation of the First Amendment to occur, there
first must be some form of expressive speech or conduct
that is intended to convey a message.” Id. at 1000. However,
the court held, Mr. Doe had not articulated any form of
expressive conduct which was impinged by his ban from
the City’s parks. Furthermore, the district court rejected Mr.
Doe’s contention that his right to freedom of thought was
infringed because he was being punished merely for inap-
propriate thoughts. “[N]ot only did he have these thoughts,”
the court explained, “but . . . he acted upon them by going
to the Park and actively seeking out the children.” Id. at
1001. The court concluded by holding that, to the extent the
ban had any impact on Mr. Doe’s thoughts, that impact was
incidental, and a mere incidental impact upon a citizen’s
thoughts does not bar a municipality from advancing a
legitimate governmental interest, such as protection of its
youth. See id. at 1000-01 (discussing Paris Adult Theatre I v.
Slaton, 413 U.S. 49, 67 (1973) (“[T]he mere fact that, as a
8 No. 01-3624
consequence, some human ‘utterances’ or ‘thoughts’ may be
incidentally affected does not bar the State from acting to
protect legitimate state interests.”)). Accordingly, the court
held that the ban did not infringe any of Mr. Doe’s First
Amendment rights.
2. Fourteenth Amendment Claim
The district court began by framing Mr. Doe’s Fourteenth
Amendment substantive due process claim as follows: “Doe
claims that the ban order violates his alleged fundamental
right to enjoy and wander through a public park.” Id. at
1001. The court noted that a plurality of the Supreme Court
in City of Chicago v. Morales, 527 U.S. 41 (1999), stated:
“[F]reedom to loiter for innocent purposes is part of the
‘liberty’ protected by the Due Process Clause.” Id. at 53.
However, the district court held Morales inapplicable to this
case because Mr. Doe’s “purposes” for going in the park
3
were not “innocent.” City of Lafayette, 160 F. Supp. 2d at
1002. The district court also considered Morales inapplicable
because it “was decided primarily on grounds of over
breadth and vagueness,” and the court found those issues
were not implicated in this case. Id. Apart from Morales, the
court also rejected the notion that there was a broader fun-
damental right to intrastate travel or freedom of movement
3
The district court noted that Mr. Doe submitted several “in-
nocent” activities for which he would like to enter the parks, such
as softball. “However,” the court explained, “Doe has not used
the city’s park system for such normal innocent purposes within
the previous ten years, rather his only visit to the park was in
response to his sexual urge to watch innocent children play in the
park and act in some criminal or inappropriate manner with
those children.” Doe v. City of Lafayette, 160 F. Supp. 2d 996, 1002
(N.D. Ind. 2001).
No. 01-3624 9
implicated by the ban. Id. at 1003 (discussing, among other
cases, Thompson v. Ashe, 250 F.3d 399, 406-07 (6th Cir. 2001)).
Because it had determined that Mr. Doe’s substantive due
process claim did not implicate a fundamental right, the
district court then considered the ban under a rational basis
standard. It concluded that the City had a strong and
legitimate interest in protecting its youth. It further con-
cluded that the ban was “narrowly tailored to the specific
facts and circumstances involving Doe and therefore ad-
vances the legitimate goals of the city.” Id. at 1004. There-
fore, the court held, the ban did not violate Mr. Doe’s right
to substantive due process.
II
DISCUSSION
Mr. Doe, by his own admission, is a sexual addict with a
proclivity toward children. He always will have sexual urges
toward children; the only question is whether he can control
them. On the January 2000 evening in question, his control
was, charitably stated, marginal. He was having sexual urges
toward children; he went “cruising” in the parks in search of
children; he saw children at Murdock Park; he got out of his
car and he “thought about the possibility of, you know,
having some kind of sexual contact with the kids.” Doe Dep.
at 28-29. Mr. Doe brought himself to the brink. Fortunately
for the children, and Mr. Doe, there were at least four
4
children there, and Mr. Doe “kn[ew] with four kids there,
that’s [having sexual contact with children] pretty difficult
4
Mr. Doe earlier testified that there were five children at Murdock
Park that evening. See Doe Dep. at 27.
10 No. 01-3624
to do. It’s a wide open area. Those thoughts were there, but
they, you know weren’t realistic at the time. They were just
thoughts.” Id.
What if there were only one child there that evening?
Would Mr. Doe have succumbed to his urges and consid-
ered the opportunity more “realistic”? Mr. Doe’s deposition
testimony suggests the answer. Fortunately, on that January
evening, Mr. Doe passed up the opportunity to gratify com-
pletely his urges. Fortunately as well, through an anony-
mous caller, the City of Lafayette found out that Mr. Doe
had engaged in psychiatric brinkmanship and endangered
some of the City’s most vulnerable citizens, children, in a
place where children should be safe to enjoy the premises,
but where, unfortunately, they also are quite susceptible to
abuse, a park. Of course, the City was aware of not only this
incident, but also of Mr. Doe’s criminal history. City officials
understandably concluded that they had a duty to take
action to protect the children. The course they chose was to
ban Mr. Doe from the City’s parks.
Mr. Doe does not believe that the officials’ chosen course
was a constitutionally permissible one. He submits that the
First and Fourteenth Amendments of the Constitution pro-
hibit the City from taking this action. The district court dis-
agreed; it granted summary judgment to the City. We
review that decision de novo. See Rogers v. City of Chicago,
320 F.3d 748, 752 (7th Cir. 2003).
A. First Amendment Claim
The First Amendment states in relevant part: “Congress
shall make no law . . . abridging the freedom of speech.”
U.S. Const. amend. I. Our first task is to ascertain whether
any of the values protected by this provision are implicated
in the situation before us.
No. 01-3624 11
1.
At the core of the First Amendment is the protection of the
right to self-expression. Constitutional jurisprudence gives
this constitutional value a generous ambit, protecting self-
5
expression in its myriad forms.
Keeping in mind the broad scope of this constitutional
protection, we nevertheless find no such value at stake in
the factual record before us. Mr. Doe makes very clear why
he went to the park. He did not go to the park to advocate
the legalization of sexual relations between adults and
minors. He did not go into the park to display a sculpture,
read a poem or perform a play celebrating sexual relations
between adults and minors. He did not go into the park for
some higher purpose of self-realization through expression.
In fact, he did not go into the park to engage in expression
at all. Rather, he went “cruising” in the parks “looking for
children” to satisfy his sexual urges. He certainly was aware
of his propensity in this regard and, of course, of his history
of sexual assault. Nevertheless, he put himself in a situation
that increased, substantially, the not-so-remote possibility of
his acting on these impulses. On this factual record, it is
difficult to ascertain how the freedom of self-expression is
6
implicated.
5
For example, protection has been extended to the reading of
obscene material in one’s home, see Stanley v. Georgia, 394 U.S. 557
(1969), profanity, see Cohen v. California, 403 U.S. 15 (1971),
symbolic expression, see Texas v. Johnson, 491 U.S. 397 (1989), flag
burning, see id., and commercial speech, see Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748
(1976).
6
Notably, Mr. Doe has not claimed that the ban is overbroad be-
cause it prohibits too much speech or expression. Indeed, there is
(continued...)
12 No. 01-3624
There can be no doubt that, among the kinds of expression
protected by the First Amendment is conduct with a
significant expressive element. The Supreme Court has long
held that the First Amendment protects a broad range of
speech and conduct, but only “conduct with a significant
expressive element that drew the legal remedy in the first
place.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 706 (1986).
This principle is well-established. See United States v. O’Brien,
391 U.S. 367, 376 (1968) (articulating and applying a four-
part test for judging the validity of content-neutral regula-
tions that incidentally impact expression). More recent
pronouncements of the Supreme Court have confirmed its
viability. See Arcara, 478 U.S. at 706-07. Our own case law
has reiterated this rule. See Hodgkins ex rel. Hodgkins v.
Peterson, 355 F.3d 1048, 1057 (7th Cir. 2004) (explaining that
the O’Brien test and the time, place and manner analysis of
Ward v. Rock Against Racism, 491 U.S. 781 (1989), “can be
applied only to governmental regulation of conduct that has
an expressive element or to regulations directed at activity
with no expressive component but which nevertheless
impose a disproportionate burden on those engaged in
protected First Amendment activity”). Indeed, although the
Supreme Court has defined the boundaries of expression
broadly, see supra n.5, it never has extended the protections
of the First Amendment to non-expressive conduct.
Consequently, Mr. Doe’s prohibition from the park only
triggers First Amendment scrutiny if he can demonstrate
6
(...continued)
nothing in the record to suggest that Mr. Doe has ever used the
City’s parks for expression, and his stated reasons for wanting to
use the parks in the future are unrelated to expression. See Doe
Aff. ¶ 7.
No. 01-3624 13
that his conduct in going to the park in search of children to
satisfy deviant desires somehow was infused with an
expressive element. See Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 n.5 (1984) (“[I]t is the obligation
of the person desiring to engage in assertedly expressive
conduct to demonstrate that the First Amendment even
applies. To hold otherwise would be to create a rule that all
conduct is presumptively expressive.”). Like the illegal
sexual activity being regulated in Arcara, it is indisputable
that Mr. Doe’s urges and actions “manifest[ ] absolutely no
element of protected expression,” Arcara, 478 U.S. at 705,
and the City’s ban “bears absolutely no connection to any
expressive activity,” id. at 707 n.3. In Arcara, the Court
pointedly compared the illegal sexual activity at issue in that
case to the sort of conduct intimately related to expression
that the Court has held to be worthy of protection under the
First Amendment. See id. (citing Grayned v. City of Rockford,
408 U.S. 104 (1972) (demonstration results in prosecution
under antinoise ordinance); Marsh v. Alabama, 326 U.S. 501
(1946) (trespass in order to distribute religious literature);
Cantwell v. Connecticut, 310 U.S. 296 (1940) (breach of peace
prosecution based upon distribution of religious literature)).
The conduct at issue in our case certainly contains no more
of an expressive element than the activity at issue in Arcara
and therefore deserves no protection under the First
Amendment.
In short, because there is no expression at issue, First
7
Amendment doctrine simply has no application here. In
7
Even if we were to determine that Mr. Doe’s sexual urges some-
how triggered First Amendment scrutiny, they would be excepted
from First Amendment protection under the incitement and ob-
scenity doctrines. Given the context in which the urges occurred
(continued...)
14 No. 01-3624
deed, we have nothing approaching “expression”; instead, we
have predation.
2.
Mr. Doe further suggests that the City is punishing him
for his private thoughts.
A government entity no doubt runs afoul of the First
Amendment when it punishes an individual for pure thought.
The Supreme Court has held that the First Amendment pro-
hibits the government from commanding a citizen to profess
or disseminate an ideological message contrary to that
citizen’s conscience, see Wooley v. Maynard, 430 U.S. 705, 713
(1977); West Virginia State Bd. of Educ. v. Barnette, 319 U.S.
624, 633-34 (1943), and from screening certain types of
7
(...continued)
and the action they precipitated, they were, in a very real sense,
“directed to inciting or producing imminent lawless action and
[were] likely to incite or produce such action.” Brandenburg v.
Ohio, 395 U.S. 444, 447 (1969). Fueled by his urges, and knowing
of his dangerous propensity, Mr. Doe put himself in a position
where he could have and would have acted to satisfy those
desires if the children had been fewer in number or, it appears, if
one of the children had wandered sufficiently away from the
others. Furthermore, Mr. Doe’s urges, if they triggered First
Amendment scrutiny, would be characterized as a form of child
pornography, the possession and distribution of which has been
held unprotected by the Supreme Court. See Osborne v. Ohio, 495
U.S. 103, 109-11 (1990); New York v. Ferber, 458 U.S. 747, 756
(1982). Of course, as we point out in the text, it is quite unrealistic
even to talk about these doctrines in this case. They assume some
form of “expression,” broadly defined, to necessitate First
Amendment scrutiny in the first place; that expression is simply
missing here.
No. 01-3624 15
stimuli from flowing to a citizen under the guise of mind
control, see Stanley v. Georgia, 394 U.S. 557, 565-66 (1969)
(“Our whole constitutional heritage rebels at the thought of
giving government the power to control men’s minds. . . .
Whatever the power of the state to control public dissemina-
tion of ideas inimical to the public morality, it cannot
constitutionally premise legislation on the desirability of
controlling a person’s private thoughts.”). Closer to this
case, the Court also has indicated that the government can-
not regulate mere thought, unaccompanied by conduct. See
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67-68 (1973) (“The
fantasies of a drug addict are his own and beyond the reach
of government, but government regulation of drug sales is
not prohibited by the Constitution.”).
The Supreme Court, however, has made it clear that only
governmental regulations aimed at mere thought, and not
thought plus conduct, trigger this principle. That is, reg-
ulations aimed at conduct which have only an incidental
effect on thought do not violate the First Amendment’s
freedom of mind mandate. Id.; Osborne v. Ohio, 495 U.S. 103,
109 (1990). Limiting First Amendment protection to pure
thought is rooted in common-sense. Thought and action are
intimately entwined; consequently, all regulation of conduct
has some impact, albeit indirect, on thought. Cases such as
Paris Adult Theatre I and Osborne simply state what most of
us probably intuit: The First Amendment’s freedom of mind
principle does not subject every conduct-focused regulation
to First Amendment scrutiny; rather, it only prohibits those
regulations aimed at pure thought and thus mind control.
In Paris Adult Theatre I, for example, the Supreme Court
rejected a freedom of thought challenge to a Georgia law
that prohibited the display or distribution of obscene ma-
terials, explaining:
It is also argued that the State has no legitimate interest
in “control [of] the moral content of a person’s thoughts,”
16 No. 01-3624
Stanley v. Georgia, [394 U.S. 557, 565 (1969)], and we
need not quarrel with this. But we reject the claim that
the State of Georgia is here attempting to control the
minds or thoughts of those who patronize theaters.
Preventing unlimited display or distribution of obscene
material, which by definition lacks any serious literary,
artistic, political, or scientific value as communication,
Miller v. California, [413 U.S. 15, 24, 34 (1973)], is distinct
from a control of reason and the intellect. Cf. Kois v.
Wisconsin, 408 U.S. 229 (1972); Roth v. United States, [354
U.S. 476, 485-87 (1957)]; Thornhill v. Alabama, 310 U.S. 88,
101-02 (1940); Finnis, “Reason and Passion”: The Constitu-
tional Dialectic of Free Speech and Obscenity, 116 U. Pa. L.
Rev. 222, 229-30, 241-43 (1967). Where communication of
ideas, protected by the First Amendment, is not in-
volved, or the particular privacy of the home protected
by Stanley, or any of the other “areas or zones” of
constitutionally protected privacy, the mere fact that, as
a consequence, some human “utterances” or “thoughts”
may be incidentally affected does not bar the State from
acting to protect legitimate state interests. Cf. Roth v.
United States, 354 U.S. at 483, 485-87; Beauharnais v.
Illinois, [343 U.S. 250, 256-57 (1952)].
413 U.S. at 67. Likewise, in Osborne, the Supreme Court
considered the constitutionality of an Ohio ordinance that
prohibited, with narrow exceptions, the possession or viewing
of “any material or performance that shows a minor who is
not the person’s child or ward in a state of nudity.” 495 U.S.
at 106 (quoting Ohio Rev. Code Ann. § 2907.323(A)(3)
(Supp. 1989)). In rejecting Osborne’s First Amendment ar-
guments, the Court distinguished its freedom of thought
precedent: “The difference here is obvious: The State does
not rely on a paternalistic interest in regulating Osborne’s
mind. Rather, Ohio has enacted § 2907.323(A)(3) in order to
protect the victims of child pornography; it hopes to destroy
a market for the exploitative use of children.” Id. at 109.
No. 01-3624 17
Although we can accept in the abstract Mr. Doe’s argu-
ment that a government may not punish pure thought, we
cannot accept his further submission that, in subjecting him
8
to this ban, the City “punished” him for “pure thought.”
8
It is important to note that the City, in banning Mr. Doe from
the parks, was not “punishing” him at all. Rather, the ban was a
civil (i.e., nonpunitive) measure designed for the protection of the
public. See Smith v. Doe, 538 U.S. 84, 105-06 (2003) (finding the
Alaska sex offender registration statute nonpunitive); see also
Kansas v. Hendricks, 521 U.S. 346, 360 (1997) (explaining regarding
Hendricks, the challenger of the civil commitment statute at
issue: “This admitted lack of volitional control, coupled with a
prediction of future dangerousness, adequately distinguishes
Hendricks from other dangerous persons who are perhaps more
properly dealt with exclusively through criminal proceedings”).
It is unquestionable that a governmental entity has broader
powers to operate both substantively and procedurally in the
civil, as opposed to criminal (i.e., punitive), context. See generally
Mary M. Cheh, Constitutional Limits on Using Civil Remedies To
Achieve Criminal Law Objectives: Understanding and Transcending
the Criminal-Civil Law Distinction, 42 Hastings L.J. 1325, 1343-44
(1991) (“The Court has approved such regulatory measures as
pretrial detention, detention during wartime and insurrection,
detention of resident aliens pending deportation proceedings,
post-arrest detention of juveniles, detention of criminal defendants
who are incompetent to stand trial, and the involuntary commit-
ment of mentally ill persons who are a danger to themselves or
to others.” (footnotes omitted)); see also id. at 1331 (noting civil
and criminal trials “follow different rules of procedure, burdens
of proof, and rules of discovery”). In fact, this case fairly can be
characterized as a form of “civil exclusion,” and the Supreme
Court has held that the Constitution affords latitude to govern-
ments to commit dangerous persons, such as sexual predators, in
order to protect the public. See Hendricks, 521 U.S. at 357 (uphold-
ing Kansas’ civil commitment statute which permitted detention
(continued...)
18 No. 01-3624
The City has not banned him from having sexual fantasies
about children. It did not ban him from the public parks
because he admitted to having sexual fantasies about child-
ren in his home or even in a coffee shop. The inescapable
reality is that Mr. Doe did not simply entertain thoughts; he
brought himself to the brink of committing child molesta-
tion. He had sexual urges directed toward children, and he
took dangerous steps toward gratifying his urges by going
to a place where he was likely to find children in a vulnera-
ble situation.
To characterize the ban as directed at “pure thought”
would require us to close our eyes to Mr. Doe’s actions. It
also would require that we give short shrift to Mr. Doe’s
condition as an admitted pedophile who continues to have
difficulty controlling his urges. The law has long recognized
8
(...continued)
when a person “has been convicted of or charged with a sexually
violent offense,” and “suffers from a mental abnormality or
personality disorder which makes the person likely to engage in
the predatory acts of sexual violence” (quoting Kan. Stat. Ann.
§ 59-29a02(a) (1994))); see also Kansas v. Crane, 534 U.S. 407 (2002)
(elaborating on Hendricks).
The fact that the City’s actions are understood appropriately
not as “punishment,” but as a civil measure designed to protect
its youth, renders irrelevant the argument that Mr. Doe’s actions
were not of sufficient gravity to justify punishment. The City was
not bound to wait until Mr. Doe again committed the crime of
child molestation or attempted child molestation in order to act.
It had the power to address Mr. Doe’s actions outside the crim-
inal law context and did exactly that. See Smith, 538 U.S. at 93
(“[A]n imposition of restrictive measures on sex offenders adjudged
to be dangerous is a legitimate nonpunitive governmental objective
and has been historically so regarded.” (internal quotation marks
and citation omitted)).
No. 01-3624 19
that not every individual is equally capable of controlling
his desires and preventing them from becoming actions
which injure others. See Smith v. Doe, 538 U.S. 84, 93 (2003)
(explaining, in upholding Alaska’s sex offender registration
statute, that “an imposition of restrictive measures on sex
offenders adjudged to be dangerous is a legitimate nonpu-
nitive governmental objective and has been historically so
regarded” (internal quotation marks and citation omitted)).
As Justice Holmes wrote, “the character of every act de-
pends upon the circumstances in which it is done.” Schenck
v. United States, 249 U.S. 47, 52 (1919). Mr. Doe is an admitted
sexual addict with a proclivity toward children; as such, he
belongs to a group of persons who are more susceptible to
having sexual desires with respect to children and to acting
on those urges. We cannot ignore, nor can we say the law
somehow commands the City to ignore, Mr. Doe’s pedo-
philia and the history of his battle with that affliction.
Facing this reality certainly does not license society, acting
through government, to exile, harass or marginalize Mr.
Doe, but it permits government to fulfill its responsibility to
protect vulnerable children in dangerous situations.
In short, we must recognize the actual situation confront-
ing the City as well as the parents and children who look to
that City for protection. The children and their parents are
not concerned about Mr. Doe’s thoughts. They are con-
cerned about his coming to the park to achieve sexual grati-
fication. They do not need to wait until a child is molested
to take steps to protect their children. The First Amendment
does not prohibit the City from taking the action it did to
protect its children. It does not require the City to act in an
ostrichlike fashion and expose the children of the City to the
risk that, on a future date, a child will wander further from
the group, present a better opportunity and experience the
tragic consequences.
20 No. 01-3624
B. Fourteenth Amendment Claim
The Due Process Clause of the Fourteenth Amendment
provides that the state shall not “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const.
amend. XIV. The case law acknowledges two distinct
strands of analysis under this Clause. The first—procedural
due process—allows the government to deprive a citizen of
“life, liberty, or property” only in accordance with certain
procedural protections. Mr. Doe did not raise this issue in
the district court, and he has not raised it in this court. We
therefore have no occasion to address this issue and express
no view with respect to the City’s treatment of Mr. Doe in
this regard.
Mr. Doe relies exclusively on the other strand of due pro-
cess analysis: substantive due process. When viewing the
Clause from this perspective, the Supreme Court has empha-
sized that the appropriate inquiry is not whether governmen-
tal authorities afforded the individual certain procedural
protection. Rather, the inquiry is whether the individual has
been subjected to “the arbitrary exercise of the powers of
government, unrestrained by the established principles of
private rights and distributive justice.” Bank of Columbia v.
Okely, 17 U.S. (4 Wheat.) 235, 244 (1819), quoted in County of
Sacramento v. Lewis, 523 U.S. 833, 845 (1998), and Hurtado v.
9
California, 110 U.S. 516, 527 (1884).
9
See also Daniels v. Williams, 474 U.S. 327, 331 (1986) (“This
history reflects the traditional and common-sense notion that the
Due Process Clause, like its forebear in the Magna Carta, was
intended to secure the individual from the arbitrary exercise of
the powers of government.” (internal quotation marks and cita-
tions omitted)); Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“The
touchstone of due process is protection of the individual against
(continued...)
No. 01-3624 21
1.
Our first duty is to provide a “careful description” of the
liberty interest that Mr. Doe seeks to have protected. Washington
v. Glucksberg, 521 U.S. 702, 721 (1997). Then, we must ask
whether that interest is “fundamental,” that is, whether it is
“objectively, deeply rooted in this Nation’s history and
tradition, and implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if [it] were
sacrificed.” Id. at 720-21 (internal quotation marks and
citations omitted). In undertaking these inquiries, we must
remain mindful of the Supreme Court’s admonition that
we ha[ve] always been reluctant to expand the concept
of substantive due process because guideposts for respon-
sible decisionmaking in this unchartered area are scarce
and open-ended. By extending constitutional protection to
an asserted right or liberty interest, we, to a great extent,
place the matter outside the arena of public debate and
legislative action. We must therefore exercise the utmost
care whenever we are asked to break new ground in this
field, lest the liberty protected by the Due Process Clause
be subtly transformed into the policy preferences of the
Members of this Court.
9
(...continued)
arbitrary action of government.”); DeTomaso v. McGinnis, 970 F.2d
211, 213 (7th Cir. 1992) (“Protection against ‘arbitrary’ action is a
form of substantive due process . . . .”); Wroblewski v. City of
Washburn, 965 F.2d 452, 457 (7th Cir. 1992) (“The due process
clause has historically been held to forbid arbitrary infringements of
certain personal immunities that are implicit in the concept of
ordered liberty, and infringements that shock the conscience.”
(internal quotation marks and citations omitted)); Singleton v.
Cecil, 176 F.3d 419, 432-33 (8th Cir. 1999) (Richard S. Arnold, J.,
dissenting).
22 No. 01-3624
Id. at 720 (internal quotation marks and citations omitted);
see also Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d
1124, 1129 (7th Cir. 1995).
Providing a careful description of the right at hand is a
question of framing, often a difficult one. The difficulty
arises because rights can be characterized in numerous ways,
and the characterization of a right plausibly can fall at a
number of points along a continuum of generality. These
difficulties, however, are constrained by two factors. First,
and perhaps most obvious, we are constrained by the factual
record before us, which sets the boundaries of the liberty
interest truly at issue in the case. Second, the Supreme Court
has limited, significantly, the level of generality at which we
may define a right. Our “careful description” of the asserted
right must be one that is specific and concrete, one that
10
avoids sweeping abstractions and generalities. See Khan v.
Gallitano, 180 F.3d 829, 833-34 (7th Cir. 1999) (discussing
Glucksberg, 521 U.S. at 722). This specificity is necessary in
10
This precision in describing the asserted liberty interest is seen
starkly in Washington v. Glucksberg, 521 U.S. 702 (1997). In Glucksberg,
the Court faced a substantive due process challenge to a Wash-
ington statute that prohibited “caus[ing]” or “aid[ing]” a suicide.
521 U.S. at 705 (quoting Wash. Rev. Code § 9A.36.060(1) (1994)).
The challengers to the statute were a group of physicians who
sought to perform physician-assisted suicide and a group of
patients who sought their assistance. Id. at 707-08. The Court
rejected broadly cast characterizations of the liberty interest at
issue presented by the appellate court, id. at 722 (“right to die”),
and by the challengers, id. at 722-23 (“liberty to choose how to
die,” a right to “control of one’s final days,” “the right to choose
a humane, dignified death” and “the liberty to shape death”). It
concluded the interest at stake was much narrower: “a right to
commit suicide which itself includes a right to assistance in doing
so.” Id. at 723.
No. 01-3624 23
order to “rein in the subjective elements that are necessarily
present in due process judicial review.” Glucksberg, 521 U.S.
at 722; see also Hutchins v. Dist. of Columbia, 188 F.3d 531, 554
(D.C. Cir. 1999) (Rogers, J., concurring in part and dissent-
ing in part) (“Courts must carefully define the contested
right, employing sufficient specificity to ground the right in
a concrete application and sufficient generality to connect
the right to its animating principles.”).
In the case before us, our inquiry can be forwarded most
easily by first describing what rights are not at stake. It is
much too broad, and inconsistent with the record, to char-
acterize Mr. Doe’s liberty interest as involving a generalized
right to movement. See Johnson v. City of Cincinnati, 310 F.3d
484, 495 (6th Cir. 2002) (noting that a generalized right to
freedom of movement connotes “interstate and international
travel components”). The City asserts a narrower version of
this concept when it claims that the right at issue is the right
to intrastate travel, i.e., the right to “travel locally through
public spaces and roadways.” Id. However, this perspective,
while more precise, does not reflect accurately the gist of
Mr. Doe’s complaint. Notably, Mr. Doe is not claiming that
the ban inhibits his right to travel through parts of the City
to engage in religious, political, commercial and social
activities; rather, he is claiming the ban infringes his right to
enter into particular types of public facilities and to stay
there for certain purposes.
Mr. Doe asserts that he seeks a right to enter the parks to
11
loiter or for other innocent purposes. Although we could
11
Mr. Doe submits that the liberty at issue is the “basic right to
wander and loiter in public parks.” Appellant’s Br. at 16. At this
point in the proceedings, we must take as true that assertion. We
note, however, that the record contains scant evidence to support
(continued...)
24 No. 01-3624
say with certainty this right is not unimportant, we cannot
say that existing authority establishes that it is “fundamen-
tal.” It certainly is an uncomfortable fit with the liberty
interests that the Supreme Court, as noted in Glucksberg, has
determined to be fundamental:
the right[ ] to marry, Loving v. Virginia, 388 U.S. 1 (1967); to
have children, Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535 (1942); to direct the education and upbringing
of one’s children, Meyer v. Nebraska, 262 U.S. 390 (1923);
to marital privacy, Griswold v. Connecticut, 381 U.S. 479
(1965); to use contraception, id.; Eisenstadt v. Baird, 405
U.S. 438 (1972); to bodily integrity, Rochin v. California,
342 U.S. 165 (1952); and to abortion, [Planned Parenthood
11
(...continued)
the assertion that Mr. Doe truly is seeking a right to enter parks
“to wander and loiter.” Mr. Doe submitted an affidavit in which he
stated that he would like to go to the parks to play softball, watch
the Colt World Series, attend a company outing if one takes place
at one of the City’s parks and take walks with friends. See Doe
Aff. ¶ 7. However, according to the record, at least since 1990, he
has not entered a City of Lafayette Park except on the January
2000 evening in question. See Doe Dep. at 30; see also Moisan-
Thomas Dep. at 36 (noting that it is “unlikely” that Mr. Doe
would want to take a walk through the park). On this night, he
was not simply wandering or loitering or seeking other innocent
activities; rather, driven by his sexual appetite for children, he
went into a park in search of children to satisfy those desires. To
the extent Mr. Doe seeks a right to enter parks to prey on
children, it goes without saying that no such right exists, and,
even if it did, it would be far from “fundamental.” Cf. City of
Chicago v. Morales, 527 U.S. 41, 53 (1999) (plurality) (“[T]he
freedom to loiter for innocent purposes is part of the ‘liberty’ pro-
tected by the Due Process Clause of the Fourteenth Amendment.”
(emphasis added)).
No. 01-3624 25
of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992)]. We have also assumed, and strongly suggested,
that the Due Process Clause protects the traditional
right to refuse unwanted lifesaving medical treatment.
[Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261
(1990)].
Glucksberg, 521 U.S. at 720. It is also helpful to compare Mr.
Doe’s asserted liberty interest to enter parks to the more
analogous right to intrastate travel, which some, but not all
of our sister circuits, have held “fundamental.” Compare, e.g.,
Johnson, 310 F.3d at 498 (recognizing as fundamental “the
right to travel locally through public spaces and roadways”)
and Ramos v. Town of Vernon, 353 F.3d 171, 176 (2d Cir. 2003)
(accord), with Wright v. City of Jackson, 506 F.2d 900, 902-03
(5th Cir. 1975) (rejecting, without extended discussion, a
fundamental right to intrastate as opposed to interstate
travel).
These rights, according to the Supreme Court (and in the
case of intrastate travel, some of our sister circuits) have a
powerful historical and precedential pedigree that supports
the conclusion that they are “objectively, deeply rooted in
this Nation’s history and tradition.” Glucksberg, 521 U.S. at
720-21; see, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (“The
freedom to marry has long been recognized as one of the
vital personal rights essential to the orderly pursuit of hap-
piness by free men.”). When we compare Mr. Doe’s asserted
liberty interest with those which have been held fundamental,
we are bound to the conclusion that Mr. Doe’s asserted right
to enter the parks to loiter is not on the same footing; it is
not “implicit in the concept of ordered liberty, such that
neither liberty nor justice would exist if [it] were sacrificed.”
Glucksberg, 521 U.S. at 721. Mr. Doe is not prohibited from
making decisions regarding who he wishes to marry, the
scope of his family and his relationship with his family
26 No. 01-3624
members. Cf. Loving v. Virginia, 388 U.S. 1 (1967); Griswold
v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316
U.S. 535 (1942). He is not prohibited from making the
decision to end his own life by refusing medical treatment.
Cf. Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261
(1990). He is not limited in moving from place to place
within his locality to socialize with friends and family, to
participate in gainful employment or to go to the market to
buy food and clothing. Cf. Johnson, 310 F.3d at 498 (The right
to intrastate travel is “an everyday right, a right we depend
on to carry out our daily life activities. It is, at its core, a
12
right of function.”). By banning Mr. Doe from the parks, the
City only has deprived him of the “right” to go the City’s
parks which he wishes to use for allegedly innocent,
recreational purposes. That this right is not “fundamental”
to Mr. Doe’s personhood is readily apparent not only from
a comparison to other “fundamental” rights, but also from
the fact that Mr. Doe has not even entered the City’s parks
since at least 1990.
The historical and precedential support for a fundamental
right to enter parks for enjoyment is, to put it mildly,
oblique. Notably, Mr. Doe’s argument contains a dearth of
12
Even the rights to refuse unwanted medical treatment and to
intrastate travel, which have much more fundamental implica-
tions than the right to enter the park to loiter, have not easily
found their way into the “fundamental” category. See Glucksberg,
521 U.S. at 720 (noting that perhaps the right to refuse unwanted
medical treatment was held fundamental in Cruzan v. Director,
Missouri Department of Health, 497 U.S. 261 (1990)); Hutchins v.
Dist. of Columbia, 188 F.3d 531 (D.C. Cir. 1999) (wrestling with the
question of whether the right to intrastate travel is fundamental);
Wright v. City of Jackson, 506 F.2d 900, 902-03 (5th Cir. 1975)
(rejecting, without extended discussion, a fundamental right to
intrastate as opposed to interstate travel).
No. 01-3624 27
historical sources. He cites no case, state or federal, that has
held that the right to enter the park to loiter or for other
enjoyment purposes is “fundamental,” as that term is un-
derstood in substantive due process doctrine. Mr. Doe’s
reliance on a handful of vagueness and overbreadth cases,
such as Papachristou v. City of Jacksonville, 405 U.S. 156, 157
n.1, 164 (1972) (striking down as unconstitutionally vague
a statute that made criminal, among other things, “wander-
ing or strolling around from place to place without any
lawful purpose or object” and noting “these activities are
historically part of the amenities of life as we have known
them”), are simply inapposite. Similarly, we believe that the
plurality statement in City of Chicago v. Morales, 527 U.S. 41
(1999), is of no appreciable help. In that statement, Justice
Stevens, joined by Justices Souter and Ginsburg, stated:
[T]he freedom to loiter for innocent purposes is part of
the “liberty” protected by the Due Process Clause of the
Fourteenth Amendment. We have expressly identified
this “right to remove from one place to another accord-
ing to inclination” as “an attribute of personal liberty”
protected by the Constitution. Williams v. Fears, 179 U.S.
270, 274 (1900); see also Papachristou v. Jacksonville, 405
U.S. 156, 164 (1972). Indeed, it is apparent that an
individual’s decision to remain in a public place of his
choice is as much a part of his liberty as the freedom of
movement inside frontiers that is “a part of our heritage,”
Kent v. Dulles, 357 U.S. 116, 126 (1958), or the right to
move “to whatsoever place one’s own inclination may
direct” identified in Blackstone’s Commentaries. 1 W.
Blackstone, Commentaries on the Laws of England 130
(1765).
Id. at 53. As an initial matter, we note that it is not at all
clear, and indeed, quite improbable, that Justice Stevens
undertook in this statement any type of fundamental rights
28 No. 01-3624
13
analysis. This language, while perhaps some support for
the general right to intrastate travel, cannot be read as the
13
As Professors Rotunda and Nowak have explained:
In Chicago v. Morales, the Supreme Court invalidated a law
that gave a police officer the authority to order individuals
to disperse whenever the police officer believed the group of
people who were gathered together in a public place involved
one or more “street gang” members who were “loitering.”
Justice Stevens wrote for six Justices in finding that the law vio-
lated due process, because it was so vague that it allowed totally
arbitrary and capricious enforcement by police officers. How-
ever, the portion of Justice Stevens’s opinion that described the
law as restricting “liberty” was joined only by three Justices. The
dissenters attacked the majority, and the plurality opinion, for
protecting an activity that they believed was not a fundamental
constitutional right and was a constitutionally protected liberty
interest.
The Morales case did not require any fundamental rights
analysis. In the portion of his opinion that was written for
only three Justices, Justice Stevens noted that the Court was
not ruling that the ability to stay on a sidewalk was a funda-
mental constitutional right. Justice Stevens did not assert that
the judiciary should closely scrutinize government laws
regulating how many people could be on a sidewalk or the
conditions on which people could walk down sidewalks in
public places. Rather, the Stevens opinion, and the concurring
Justices, merely found that the government could not make
some form of human activity criminal without providing
minimally adequate notice to individuals concerning the type
of activity that would violate the law. Just as every law must
survive the minimal rationality test, every criminal law must
provide some notice to individuals concerning the conduct it
makes criminal and provide some limitation of police discretion.
2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional
Law: Substance and Procedure § 15.5, at 52 (3d ed. Supp. 2004).
No. 01-3624 29
Supreme Court’s mandating that a right to loiter in all places
deemed “public” is a fundamental liberty interest. Substan-
tive due process analysis is context-specific; this statement
hardly includes all the contexts of “public” places—for ex-
ample, parks, public schools, jails, libraries, governmental
administration buildings—nor does it mandate a fundamen-
tal liberty interest to loiter in all of them.
We also are unpersuaded by Mr. Doe’s reliance on cases
involving the First Amendment public forum doctrine,
which holds that “the rights of the state to limit expressive
activity are sharply circumscribed” in “quintessential public
forums” such as “streets and parks.” Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (emphasis
added). As we have discussed at some length in an earlier
section of this opinion, Mr. Doe’s conduct on the January
2000 night in question does not involve expression, and Mr.
Doe’s stated reasons for now wanting to enter the park are
unrelated to expression. See Doe Aff. ¶ 7. Indeed, it is telling
that Mr. Doe does not even mention the public forum line of
cases in his First Amendment argument.
In sum, assuming the record would support his conten-
tion that he is seeking a right to enter public parks simply to
wander and loiter innocently, we cannot characterize that
right as “fundamental.”
2.
Because we have concluded that the City’s ban does not
encroach on a fundamental liberty interest, we are bound to
apply the rational basis standard of review to the City’s ban.
Accordingly, we must ask whether the ban is “rationally
related to a legitimate government interest, or alternatively
phrased,” whether the ban is “arbitrary” or “irrational.” Lee
v. City of Chicago, 330 F.3d 456, 467 (7th Cir. 2003). As Mr.
30 No. 01-3624
Doe concedes, the City’s interest is not merely legitimate, it
is compelling. See Appellant’s Br. at 20; see also New York v.
Ferber, 458 U.S. 747, 756-57 (1982) (“It is evident beyond the
need for elaboration that a State’s interest in ‘safeguarding
the physical and psychological well-being of a minor’ is
‘compelling.’ ” (quoting Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 607 (1982))). Furthermore, the ban of Mr.
Doe from the City’s parks is rationally related to that end.
Mr. Doe admits that he is a sexual addict who always will
have inappropriate urges toward children; his physician
readily concedes that sexual addicts like Mr. Doe sometimes
fall down the slippery slope into abuse; and, in January of
2000, he started down the slippery slope when he went to
the parks in response to those urges and did not act on them
only because they were not “realistic” at the time. Add these
facts to the reality that children, some of the most vulnera-
ble members of society, are susceptible to abuse in parks,
and it is hard to see how the City’s ban is anything but
rational.
Indeed, even if we were required to judge the ban under
the strict scrutiny standard, we would uphold its validity.
Strict scrutiny mandates that the governmental regulation
at issue have a compelling government interest and be nar-
rowly tailored to serve that interest. See Billings v. Madison
Metro. Sch. Dist., 259 F.3d 807, 815 (7th Cir. 2001). Again, Mr.
Doe concedes the compelling nature of the City’s interest in
protecting its youth; therefore, the only question is whether the
ban is narrowly tailored to serve that interest. The narrow
tailoring inquiry requires that we ask whether there are
“other, reasonable ways to achieve th[e] goals with a lesser
burden on constitutionally protected activity.” Johnson, 310
F.3d at 503 (quoting Dunn v. Blumstein, 405 U.S. 330, 343
(1972)). If there are, the City “may not choose the way of
greater interference. If it acts at all, it must choose ‘less
drastic means.’ ” Id.
No. 01-3624 31
The City has banned only one child sex offender, Mr. Doe,
from the parks, and they have banned Mr. Doe only because
of his near-relapse in January of 2000 when he went into the
14
park to engage in psychiatric brinkmanship. Mr. Doe
argues that the ban could be narrower both geographi-
cally—limited to certain areas of the park system— and
temporally—it could extend for a finite period of time. This
argument ignores that the only “less drastic means” the City
must conform to are those which are “reasonable” means of
achieving the compelling interest. Id. The City cannot
reasonably anticipate what parts of the park system children
will be located in at all times, and, on this record, we have
no basis on which to question its judgment that children are
vulnerable throughout the park system. As to the temporal
nature of the ban, Mr. Doe concedes that his sexual urges
toward children always will be with him, and his behavior
in January of 2000, coupled with his criminal history,
presents a compelling case that he is prone to relapse.
Nothing in the record suggests this is likely to subside over
time. Accordingly, even assuming that we ought to consider
this ban under the strict scrutiny standard, we still would
hold it was valid as the narrowest reasonable means for the
City to advance its compelling interest of protecting its
children from the demonstrable threat of sexual abuse by
Mr. Doe.
14
Mr. Doe suggests that his exclusion is irrational because there
are many convicted sex offenders living in the same geographic
area who are not banned from the parks. According to this rec-
ord, however, the City does not have knowledge that relapses or
near-relapses involving other sex offenders have occurred on city
property. There is certainly nothing in the record to suggest the
City would act differently when faced with a similar case.
32 No. 01-3624
Conclusion
For the foregoing reasons, we must reject Mr. Doe’s chal-
lenges based on the First and Fourteenth Amendments and
affirm the judgment of the district court.
AFFIRMED
WILLIAMS, Circuit Judge, with whom ROVNER and DIANE P.
WOOD, Circuit Judges, join in dissenting. John Doe was
banned for life from all park property in the City of Lafay-
ette, Indiana—including a golf course, sports stadium, and
city pools. As this ban violates Doe’s First Amendment right
to freedom of thought by impermissibly punishing him for
those thoughts, I respectfully dissent.
I. BACKGROUND
Convicted sex offenders, particularly child molesters, are
a reviled group. Child molestation is one of the most
heinous and deplorable crimes, attacking our most precious
resource, our children. John Doe is a member of this under-
standably vilified group. His criminal history includes convic-
tions for child molestation, voyeurism, exhibitionism, and
window peeping. His last conviction was in 1991, ten years
before this litigation. Doe’s crimes were committed in
schools, a convenience store, and outside private residences
(though none in a park). He admits that his urges are
triggered by emotional vulnerability, typically in the late
No. 01-3624 33
evening. As a result of these criminal convictions, Doe has
been hospitalized, imprisoned, under house arrest, and on
probation. He has been in active psychological treatment
since 1986, and voluntarily attends group therapy. Doe admits
he still has fantasies about children, and his psychologist
opines that he will likely have these urges for the rest of his
life.
In January 2000, Doe was driving home from work and
1
stopped at Murdock Park, in the City of Lafayette, and
watched five youths in their early teens playing on a base-
ball diamond. Doe admits that, while observing them, he
thought about having sexual contact with the children. After
watching them for 15-30 minutes, and without having any
contact with them, Doe left the park. “I said to myself: I’ve
got to get out of here before I do something, so I left.” Doe
2
Dep. at 27.
Once Doe left the park, he sent an emergency page to his
psychologist’s answering service, which immediately con-
tacted the doctor. Doe explained what occurred and ex-
1
The majority points out that Doe came in contact with two
parks, but his intention in going to the first park, Columbian
Park, is far from clear. Doe explained in his deposition that he
lived a short distance from that park, and there is no evidence
that he got out of his car or even stopped his car at the first park.
2
Characterizing Doe’s ability to control his urges as “marginal,” the
majority seems to focus on Doe’s statements concerning the logistical
difficulty of approaching the teenagers on the baseball diamond.
Majority opinion at 9. However, as the majority concedes and Doe
articulates, he was able to control himself and leave the park. “While
watching the children in Murdock Park in January of 2000 I certainly
had sexual thoughts. However, I was not planning to act on my
thoughts. I recognized that these were just unhealthy thoughts and
I realized I needed to leave the park, which is what I did.” Doe
Aff. ¶ 5.
34 No. 01-3624
pressed that he was upset about the incident. As part of his
treatment, his psychologist suggested that he discuss the
incident with his sexual addicts anonymous (SAA) group,
which was to meet a few days later. The doctor also focused
on the fact that Doe was able to control his urge and leave
3
the park as a positive step in his rehabilitation. As the
longest non-offending member of the SAA group,
its members were very disappointed by Doe’s disclosure. In
response to this incident, Doe began voluntarily receiving
weekly shots of Depo-Provera to aid in suppressing his
urges.
An anonymous source reported Doe’s January visit to the
park, and the thoughts he had while he was there, to Doe’s
former probation officer. The probation officer then contacted
the Lafayette Police Department, which prompted a conver-
sation between the Police Chief, the Superintendent of the
Lafayette Parks Department, and a City attorney regarding
Doe’s appearance in the park. Their discussion focused on
the nature of Doe’s January visit to the park and his criminal
history, although all acknowledge that Doe was no longer
4
serving a sentence or on probation. As a result of this
conversation, the City Parks Department issued an order
3
Doe’s psychologist explained that “[i]n the first phase of re-
covery, our primary goal is to keep the patient as far away from
any circumstance that might hold a trigger for him.” While, “[i]n
the second phase of recovery, we actually encourage the patient
to begin to determine the boundaries of what’s safe and what’s
not safe.” Moisan-Thomas Dep. at 14-15.
4
Doe was not on probation in January 2000 and was not even
restricted from entering the park during his period of house
arrest a decade earlier, thus, this analysis will not consider
whether the restrictions imposed by the City might have been
appropriate as a condition of release as part of the earlier criminal
sentences. Cf. United States v. Schave, 186 F.3d 839, 841 (7th Cir.
1999).
No. 01-3624 35
permanently banning Doe from entering any City park
property at any time and for any purpose under threat of
arrest for trespass. The City did not provide any pre-is-
suance review of the ban, nor was Doe afforded an opportu-
5
nity to appeal.
The ban order is both geographically and temporally
broad. The City of Lafayette’s extensive park system in-
cludes several large parks, many smaller neighborhood
parks, a zoo, a golf course, a sports complex, a baseball sta-
dium, and several pools. Typically, ban orders are issued by
the City against those who have vandalized park property
or interfered with park patrons. The resulting bans ordi-
narily are issued for a week or, at most, a summer. In this
6
case, the ban order against Doe has no termination date.
II. ANALYSIS
Doe’s First Amendment appeal raises several questions
not typically before a court. May a city constitutionally ban
one of its citizens from public property based on its discov-
ery of that individual’s immoral thoughts? Is being banned
from public property a “punishment”? Does the First
Amendment protect a citizen’s right to think about commit-
ting a crime, even if he has committed that crime in the
past? This scenario is quite unusual, as it is a rare case
where thoughts, as distinct from deeds, become publicly
5
Although I have grave concerns about the procedural due
process infirmities in the method employed by the City to issue
the ban, Doe does not challenge the order on this ground. I con-
tinue to be intrigued by Doe’s strategic decision to forgo this
straightforward claim.
6
As the majority points out, Doe also has not challenged the ban
on the grounds that it is unconstitutionally overbroad. I am also
puzzled by the omission of this issue from Doe’s discussion.
36 No. 01-3624
known. Most thinking, unless purposefully revealed to
others, remains one’s own. Unlike other cases in which the
state becomes aware of an individual’s mental state because
of his or her actions, here the City acknowledges that Doe’s
own revelation of his thoughts, not any outward expression
demonstrating his thinking, is the basis for its actions.
A. The First Amendment prohibits government control
over a citizen’s thoughts.
The freedom of individuals to control their own thoughts
has been repeatedly acknowledged by the Supreme Court.
In West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,
642 (1943), the Court upheld a challenge by Jehovah’s
Witnesses to West Virginia’s requirement that all schoolchil-
dren participate in a pledge and salute honoring the United
States flag. The Court ruled that such an obligation would
impermissibly infringe upon “the sphere of intellect and
spirit which it is the purpose of the First Amendment to our
Constitution to reserve from all official control.” Id.
Although Barnette’s challenge to the West Virginia enact-
ment was based on religious conviction, id., the guarantee
of freedom of the intellect has not been limited to beliefs
concerning politics or religion. In Stanley v. Georgia, 394 U.S.
557 (1969), Stanley was convicted under Georgia law for
possessing obscene material when pornographic films were
found in his home. The Supreme Court reversed Stanley’s
conviction, finding a right to peruse obscene material in the
privacy of one’s home. Id. at 565-66. A central focus of the
Court’s discussion was the quintessential principle that the
government’s power does not extend to control of a person’s
thoughts: “a State has no business telling a man, sitting
alone in his own house, what books he may read or what
films he may watch. Our whole constitutional heritage
No. 01-3624 37
rebels at the thought of giving government the power to
control men’s minds.” Id. at 565. Once again, the Court tied
this freedom to fundamental principles of the First Amend-
ment, holding that “it is wholly inconsistent with the
philosophy of the First Amendment” for the government to
exercise “the right to control the moral content of a person’s
7
thoughts.” Id. at 565-66.
The Court has also recognized the intersection of freedom
of the mind, protected by the First Amendment, with the
right to privacy. See Griswold, 381 U.S. at 483 (“[T]he First
Amendment has a penumbra where privacy is protected
from governmental intrusion.”); see also Lawrence v. Texas,
539 U.S. 558, 558 (2003) (“Liberty protects the person from
unwarranted government intrusions into a dwelling or other
private places. In our tradition the State is not omnipresent
7
See also United States v. Reidel, 402 U.S. 351, 355-56 (1971)
(affirming that Stanley focused on the “freedom of mind and
thought and on the privacy of one’s home”); Wooley v. Maynard,
430 U.S. 705, 714-15 (1977) (overturning requirement that license
plate include phrase “Live Free or Die” under “the proposition
that the right of freedom of thought protected by the First
Amendment against state action includes both the right to speak
freely and the right to refrain from speaking at all”); Griswold v.
Connecticut, 381 U.S. 479, 482 (1965) (“The right of freedom of
speech and press includes . . . freedom of thought”); United States
v. Schwimmer, 279 U.S. 644, 654-55 (1929) (Holmes, J., dissenting)
(“[I]f there is any principle of the Constitution that more im-
peratively calls for attachment than any other it is the principle
of free thought”); Steven J. Heyman, Spheres of Autonomy:
Reforming the Content Neutrality Doctrine in First Amendment
Jurisprudence, 10 Wm. & Mary Bill Rts. J. 647, 655 (2002) (“Although
the First Amendment does not expressly mention freedom of
thought, it is generally agreed that this freedom lies at the heart
of what the amendment was intended to protect.”).
38 No. 01-3624
in the home. And there are other spheres of our lives and
existence, outside the home, where the State should not be
a dominant presence. Freedom extends beyond spatial
bounds. Liberty presumes an autonomy of self that includes
freedom of thought, belief, expression, and certain intimate
conduct.”); Claudia Tuchman, Does Privacy Have Four Walls?
Salvaging Stanley v. Georgia, 94 Colum. L. Rev. 2267, 2282
(1994) (discussing freedom of thought and reasoning that
“[f]reedom of mind focuses on the privacy of all personal
thoughts—the ‘abnormal’ as well as the intellectually
worthy.”).
Indeed, even when an individual’s ideas concern immoral
thoughts about child pornography, the Court has steadfastly
maintained the right to think freely. See Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 252-53 (2002). In Free Speech Coalition,
the Court considered federal legislation that criminalized
virtual child pornography, so named because although the
images appear to depict minors, they were produced without
using real children. Id. at 239. The Court struck down the
ban, finding that Congress could not justify prohibition of the
constitutionally-protected speech. Id. at 256. There, the fact that
possession of virtual child pornography may ignite sexually
immoral thoughts about children was not enough to justify
banning it. Id. at 252-53. Given the Court’s long-standing rec-
ognition of the freedom of thought, the City of Lafayette’s ban
order must be analyzed in light of the principle that freedom of
the mind occupies a highly-protected position in our con-
stitutional heritage.
The City defends the ban as a measure to protect its youth
from a person with a history of sex offenses whom it fears
may harm its children in the future. As part of this argu-
ment, the City and the majority seem to equate a propensity
to commit crime with an inability to control one’s impulses,
implying that Doe’s thoughts about children and close prox-
No. 01-3624 39
imity to them will lead him to strike again. First, propensity
and volitional capacity are distinct aspects of conduct. See
Kansas v. Crane, 534 U.S. 407, 414 (2002) (recognizing that the
Constitution does not permit the commitment of a pedophile
without some lack-of-control determination thereby recogniz-
ing the possibility that a pedophile may control his urges).
Further, this fear—that an individual’s thoughts may
encourage action—is not enough to curb protected thinking.
The Court in Stanley addressed the line between crime
prevention and protected speech, stating,
we believe that in the context of private consumption of
ideas and information we should adhere to the view
that ‘[a]mong free men, the deterrents ordinarily to be
applied to prevent crime are education and punishment
for violations of the law.’
394 U.S. at 566-67 (emphasis added).
Further, in Free Speech Coalition, the government proposed
a similar theory in defense of the ban of virtual child
pornography. 535 U.S. at 253. Attempting to prevent the
potential indirect harm to children posed by pedophiles,
Congress reasoned that the virtual pictures may serve to
“whet” the appetites of pedophiles and may be used to
convince a reluctant child to participate in sexual acts. Id. at
241. In line with its previous stance in Stanley, the Court
squarely rejected this theory: “The government ‘cannot con-
stitutionally premise legislation on the desirability of control-
ling a person’s private thoughts.’ First Amendment freedoms
are most in danger when the government seeks to control
thought or to justify its laws for that impermissible end.” Id.
(quoting Stanley, 394 U.S. at 566). Citing criminal statutes 18
U.S.C. §§ 2241 and 2251, which prohibit sexual abuse, the
Court reasoned that “Congress may pass valid laws to
protect children from abuse,” however, “[t]he prospect of
40 No. 01-3624
crime . . . by itself does not justify laws suppressing pro-
tected speech.” Id. at 245 (emphasis added).
The majority aptly points out that while pure thoughts are
protected by the First Amendment, non-expressive actions
are not. First Amendment jurisprudence is fastened upon
the critical distinction between thinking and acting on those
thoughts. See, e.g., Free Speech Coalition, 535 U.S. at 253
(“[T]he Court’s First Amendment cases draw vital distinc-
tions between words and deeds, between ideas and con-
duct.”); Reidel, 402 U.S. at 356 (private thoughts or fantasies
are protected by the First Amendment, but selling or buying
obscenity in the mail is not protected activity and may be
proscribed without violating the First Amendment). The
majority argues that Doe’s steps of driving to the park and
watching children constitute non-expressive conduct. The
question then is whether the First Amendment protects a
citizen who goes to a venue and thinks about committing a
crime? It is clear on this record, that absent Doe’s thoughts
(and arguably his status as a pedophile, which I address
below) the City would be uninterested in Doe’s decision to
go to the park that fateful day. Moreover, divorcing Doe’s
thoughts from the City’s decision to ban him also strips the
City of its alleged “rational basis” for its decision.
Recognizing that no child was directly harmed by Doe’s
decision to go to the park, the issue here, like that in Free
Speech Coalition, is the scope of the City’s power to curb
protected thought under the First Amendment to prevent
criminal conduct. In the context of child pornography and
the potential for child abuse, New York v. Ferber, 458 U.S.
747, 759-60 (1982) and Osborne v. Ohio, 495 U.S. 103, 110-11
(1990), reflect the delineation between prohibiting conduct
which actually harms children by making them victims and
conduct which facilitates criminal conduct. For example, in
Ferber, the Court upheld the prohibition of the distribution
No. 01-3624 41
and sale of child pornography, even though it did not meet
the definition of obscenity under Miller v. California, 413 U.S.
15 (1973), because of the actual harm suffered by partici-
pants in the making of the child pornography. 458 U.S. at
759-60. Further explaining this distinction, the Court in
Osborne allowed the prohibition of purely private possession
of child pornography based on the fact that it helps facilitate
criminal conduct, such as its use in soliciting minors to
participate in sexual acts or whetting the appetites of pedo-
philes. 495 U.S. at 110-11. However, the Court also reasoned
that the actual harm suffered by participants was a key
ingredient to the constitutionality of the prohibition. Id.
Finally, in Free Speech Coalition, the Court reaffirmed the
importance of this actual harm element by reasoning that
the First Amendment is violated when speech which “rec-
ords no crime and creates no victims by its production” is
8
prohibited. 535 U.S. at 250.
8
The Court’s holding in Free Speech Coalition directly rejects the
majority’s puzzling attempt to carve out categories of thought
that should be “unprotected” because they might relate to ob-
scenity or may “incite” unlawful action. Thought is protected
regardless of its underlying content. See Reidel, 402 U.S. at 356
(“[Reidel] has no complaints about governmental violations of his
private thoughts or fantasies, but stands squarely on a claimed
First Amendment right to do business in obscenity. . .”). Further-
more, the majority’s reliance on Brandenburg v. Ohio, 395 U.S. 444
(1969), for the proposition that Doe’s thoughts are a form of self-
incitement is equally puzzling. The cases that have referred to
Brandenburg have all involved the incitement, or the attempted
incitement to lawlessness of one group or individual by a
different group or individual. See e.g. Lorillard Tobacco Co. v. Reilly,
533 U.S. 525 (2001); Texas v. Johnson, 491 U.S. 397 (1989);
N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982); Commu-
nist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974); Eisenstadt v.
Baird, 405 U.S. 438 (1972).
42 No. 01-3624
The City did not receive any complaints from the children
in the park, and it does not allege that anyone was affected
by Doe’s presence there. Presumably, untold numbers of
Lafayette residents wander the City’s parks every day, many
of them potentially thinking offensive or objectionable
thoughts. The City has not suggested that it monitors sex
offenders’ presence in the City parks, and it could not cite
any other example of an individual banned for mere
presence in the park. The only factors that differentiate Doe
from others are that the City was apprised of his thoughts
while he was in the park and its knowledge of his past
conduct.
The majority’s reliance on cases such as United States v.
O’Brien, 391 U.S. 367, 376 (1968) and Arcara v. Cloud Books,
Inc., 478 U.S. 697, 706 (1986) is unhelpful. These cases focus
on the distinction between mere conduct and expression
and do not contradict long-standing principles regarding
protection of thought. Cf. Free Speech Coalition, 535 U.S. at
253 (“The right to think is the beginning of freedom, and
speech must be protected from the government because
speech is the beginning of thought.”). Furthermore, the ban
is not a content-neutral widely applied general ordinance,
which incidentally affects a narrow form of expressive con-
duct, as was the case in O’Brien and Clark v. Community for
Creative Non-Violence, 468 U.S. 288 (1984). Rather, the City
seeks to prohibit Doe from entering its park facilities based
on his thoughts, which, as stated above, are the bedrock of
expression. Finally, this situation is distinguishable from
Arcara. In Arcara, the Court found that the First Amendment
did not preclude the closing of a bookstore when it was undis-
puted that solicitation of prostitution and other sexual acts
were being performed by patrons in the store. See id. at 705
(“[W]e underscored the fallacy of seeking to use the First
Amendment as a cloak for obviously unlawful public sexual
No. 01-3624 43
conduct. . .”). Therefore, he is not seeking to use the First
Amendment to cloak unlawful conduct as no such unlawful
conduct occurred.
B. The ban imposed on Doe is a punishment.
The majority characterizes the ban as a form of “civil
exclusion,” majority opinion at n. 8, and brushes aside the
argument that the ban is punitive in nature. However, it is
clear from the record that the City seeks to punish Doe by
banning him from public park facilities based on the City’s
discovery of his fantasies.
When determining whether a governmental action consti-
tutes a punishment, courts review such factors as:
[W]hether a sanction involves an affirmative restraint,
how history has regarded it, whether it applies to behavior
already a crime, the need for a finding of scienter, its rela-
tionship to a traditional aim of punishment, the presence
of a nonpunitive alternative purpose, and whether it is
excessive in relation to that purpose.
Kansas v. Hendricks, 521 U.S. 346, 394 (1997) (Breyer, J. dis-
senting) (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144,
169 (1963)) (finding that Kansas’s involuntary commitment
of a mentally ill sexually dangerous offender is a civil rather
than criminal sanction). Courts may also look to the State’s
articulated purpose behind the measure. See Smith v. Doe, 538
U.S. 84, 93 (2003) (characterizing the forced registration of
sex offenders with the Department of Corrections as a civil
sanction). For example, in In the Matter of Ruffalo, 390 U.S.
544, 550 (1968), the Court found that “[d]isbarment, de-
signed to protect the public, is a punishment or penalty
imposed on the lawyer.” Similarly, in Specht v. Patterson, 386
U.S. 605, 608-09 (1967), the Court found that Colorado’s Sex
Offender’s Act served to punish, “even though it is de-
44 No. 01-3624
signed not so much as retribution as it is to keep individuals
from inflicting future harm.” Both cases focus on the
importance of fair notice and due process.
This ban unquestionably imposes an affirmative restraint
on Doe’s liberty of movement. SeeYoungberg v. Romeo, 457
U.S. 307, 316 (1982) (discussing the “freedom of movement”
and citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18
(1979), for the proposition that “[l]iberty from bodily re-
straint always has been recognized as the core of the liberty
protected by the Due Process Clause from arbitrary govern-
mental action.”). In its attempt to characterize the City’s action
as “nonpunitive,” the majority cites Smith for the proposition
that the Constitution permits the “imposition of restrictive
measures on sex offenders adjudged to be dangerous.” 538
U.S. at 93. Majority opinion at n.8. However, this quote fails
to tell the full story. The Court went on to affirm the con-
stitutionality of Alaska’s sex offender registry because it
“does not restrain activities sex offenders may pursue,” id.
at 100, and the “dissemination of truthful information in
furtherance of a legitimate governmental objective” is not
punishment, id. at 98. In contrast, Lafayette’s ban expressly
prohibits Doe from entering any property deemed a part of
the Lafayette Park system, which encompasses far more
than its parks. Far from merely giving the public truthful
information, this ban affirmatively restricts Doe’s freedom
of movement. The City’s action is reminiscent of a partial
banishment, which serves to expel Doe from certain por-
tions of City property, see id. at 98 (discussing banishment
as a measure historically recognized as a punishment), and
therefore is not akin to a duty to register.
Perhaps most telling is the ban’s relationship to the tra-
ditional aims of punishment. See Stephen B. Reed, The
Demise of Ozzie and Harriet: Effective Punishment of Domestic
Abusers, 17 New Eng. J. on Crim. & Civ. Confinement 337,
No. 01-3624 45
358-63 (1991) (discussing the traditional aims of punishment as
deterrence, incapacitation, retribution, and rehabilitation).
Specifically, the ban serves the twin goals of deterrence,
which are to prevent an individual from repeating conduct
as well as preventing similar acts by others. See id. at 358-59.
News of Doe’s ban will surely serve to warn others in his
position that they too may be restricted from entering
portions of Lafayette if the City is apprised of their immoral
thoughts. (The ban also serves to deter sex offenders from
seeking treatment, but I will address that issue later.)
Further, the ban segregates Doe from the community and
sets him apart from the general population. This form of
segregation is similar to a condition of probation or super-
vised release. See Smith, 538 U.S. at 101 (“Probation and
supervised release entail a series of mandatory conditions
and allow the supervising officer to seek the revocation of
probation or release in case of infraction.”); Schave, 186 F.3d
at 841 (preventing a convicted explosives dealer from “as-
sociating with organizations that, or members who, espouse
violence or the supremacy of the white race”). Here, the City
has set out a mandatory restriction and should Doe set foot
in a City park facility he may be prosecuted for trespass. See
United States v. Holm, 326 F.3d 872, 878 (2003) (“to the extent
that the condition [of supervised release] is intended to be
a total ban on Internet use, it sweeps more broadly and
imposes a greater deprivation on Holm’s liberty than is neces-
sary. . .”) (emphasis added).
The ban is also excessive in relation to its stated purpose
as it contains no termination date. Critical to the analysis in
Hendricks, was the Court’s determination that the petitioner
would be confined only so long as he remained a danger to
himself or to the public. 521 U.S. at 363. The Court also
noted that the duration of confinement was only “poten-
tially” indefinite. Id. We have no such safeguards here. Doe
46 No. 01-3624
has been banned for life, with no prospect of review or
reconsideration by the City.
I recognize that Doe is not challenging the ban on pro-
cedural grounds, see n. 5, infra, however, the utter lack of
pre-application procedure and post-application review is
critical to the question of whether the ban is punitive. Both
Hendricks and Smith relied on the imposition of sanctions
after constitutionally appropriate procedures to protect against
potential arbitrary government action. See Hendricks, 521
U.S. at 357 (“We have consistently upheld such involuntary
commitment statutes provided the confinement takes place
pursuant to proper procedures and evidentiary standards.”);
Smith, 538 U.S. at 84 (registration only mandated for those
previously convicted of a sexual offense). One could argue
that these cases are inapposite based on this difference
alone. The lack of such procedural safeguards, i.e., periodic
review of the necessity of the ban, any procedure to test the
accuracy of the information used by the City as its basis for
action, and the lack of any connection to Doe’s ability to
control his urges, serves to highlight the City’s actual mo-
tivation.
Finally, the fact that the anonymous caller contacted Doe’s
former probation officer, who then in turn contacted the
police department (criminal units) who then contacted the
superintendent of parks and the city attorney further under-
scores the City’s intention to punish rather than civilly
sanction. The resulting ban order is a judicially enforceable
criminal decree which punished Doe for his thoughts. See
Hill v. Colorado, 530 U.S. 703, 713 (2000) (quoting Madsen v.
Women’s Health Center, 512 U.S. 735, 764 (1994) (reasoning
that a judicial decree poses a “greater risk of censorship and
discriminatory application than do general ordinances.”)).
Having found that the ban is in fact punitive, the maxim
cogitationis poenam nemo patitur (no one is punishable solely
No. 01-3624 47
for his thoughts) is particularly apt. This maxim serves as a
cornerstone of the criminal justice system and has shaped
9
many of the constitutional boundaries of criminal law.
Perhaps the Victorian legal scholar James Fitzjames Stephen
best explained this basic limit on government power: “If it
were not so restricted it would be utterly intolerable; all
mankind would be criminals, and most of their lives would
be passed trying and punishing each other for offenses
which could never be proved.” 1 James Fitzjames Stephen,
A History of the Criminal Law of England 78 (1883).
C. A citizen may not be punished based on his status.
My conclusion is buttressed by a fundamental understanding
of the bounds of punishable conduct. This axiomatic
principle is illustrated by the distinction between punish-
ment for a person’s status—impermissible under the Eighth
Amendment—and sanctions levied for a person’s conduct.
See Robinson v. California, 370 U.S. 660, 666 (1962). In Robin-
son, the Supreme Court struck down a California statute that
made addiction to narcotics illegal. Id. at 666-67. Because the
statute required no illegal act, but criminalized mere status
as a drug addict, it violated the Eighth Amendment’s
prohibition against cruel and unusual punishment. Id. at 667.
9
The proscription against penalizing for ideas alone has been
recognized for centuries, see 4 William Blackstone, Commentaries on
Laws of England, 21 (1765) (“[N]o temporal tribunal can search
the heart or fathom the intentions of the mind, otherwise than as
they are demonstrated by outward actions, it therefore cannot
punish for what it cannot know.”), and is reflected in modern
codifications of the common law, see Model Penal Code and
Commentaries, Comment to § 2.01 at 214-15 (1985) (“It is
fundamental that a civilized society does not punish for thoughts
alone.”).
48 No. 01-3624
This distinction was further refined in Powell v. Texas, 392
U.S. 514, 532-34 (1968), where the Court explained that
although status may not be criminalized, acts undertaken as
a result of that status may be. There, the Court upheld
Powell’s arrest for appearing drunk in public because the
Texas law did not sanction Powell merely for his status as
an alcoholic, but for his act of overimbibing in public. Id. at
535-36. The Court rested its holding on the fact that Powell
voluntarily committed sanctionable conduct: “The entire
thrust of Robinson’s interpretation of the Cruel and Unusual
Punishment Clause is that criminal penalties may be
inflicted only if the accused has committed some act, has
engaged in some behavior, which society has an interest in
preventing, or perhaps in historical common law terms, has
committed some actus reus.” Id. at 533. See also United States
v. Black, 116 F.3d 198, 200-01 (7th Cir. 1997) (conviction for
distribution, receipt, and possession of child pornography
did not violate the Eighth Amendment despite plaintiff’s
contention of his status as a pedophile).
Doe’s going to the park does not rise to the level of an
“action” of sufficient gravity to justify punishment. The error
in punishing actions similar to Doe’s is more easily seen by
way of analogies removed from the sensitive context of
child molestation. By way of comparison, courts would not
sanction criminal punishment of an individual with a crim-
inal history of bank robbery (a crime, like child molestation,
with a high rate of recidivism, United States v. Pirovolos, 844
F.2d 415, 416 n.1 (7th Cir. 1988)) simply because she or he
stood in the parking lot of a bank and thought about rob-
bing it. It goes without saying that in this hypothetical the
individual has not taken an action that could support pun-
ishment. Or, as a different example, punishing a drug addict
who stands outside a dealer’s house craving a hit but suc-
cessfully resists the urge to enter and purchase drugs would
be offensive to our understanding of the bounds of the
No. 01-3624 49
criminal law. See Paris Adult Theatre I v. Slaton, 413 U.S. 49,
67-68 (1973) (“The fantasies of a drug addict are his own
and beyond the reach of government, but government
regulation of drug sales is not prohibited by the Constitu-
tion.”) Despite the City’s arguments to the contrary, both of
these situations, analogous to the actions taken by Doe here,
present clear examples of actions that do not reach a level of
criminal culpability necessary to justify punishment.
As these illustrations suggest, Doe’s behavior may also be
understood as the kind that does not come close to what is
recognized as punishable under the theory of attempt.
Under Indiana law, a person commits attempt when, acting
with culpability necessary to commit the crime, he or she
“engages in conduct that constitutes a substantial step toward
commission of the crime.” Ind. Code § 35-41-5-1. Here, the
most that can be said of Doe’s action is that he drove to the
park and watched children. Even if it is assumed that Doe
intended to molest children when he stood in the park,
Doe’s mere presence in the park is not enough to constitute
a “substantial step” towards an attempted sex offense. See
State v. Kemp, 753 N.E.2d 47, 51 (Ind. Ct. App. 2001) (affirming
dismissal of attempted child molestation charge when
defendant allegedly agreed to meet minor at restaurant parking
lot, drove there, and brought condoms because conviction
would result in “no limit on the reach of ‘attempt’ crimes”).
In the same way that the individual with a history of rob-
bing banks could not be charged with attempted bank robbery
for standing across the street from the bank and thinking
about robbing it, Doe may not be punished for merely
thinking perverted thoughts about children.
Finally, Doe’s conduct is not akin to stalking, which, while
perhaps motivated by thoughts, requires actual threatening
conduct by the stalker. Stalking statutes typically require
that a defendant: (1) knowingly or intentionally; (2) engage
50 No. 01-3624
in a course of conduct involving continuous or repeated
harassment; (3) that would cause a reasonable person to feel
terrorized, frightened, intimidated, or threatened; and (4)
actually causes that person to feel terrorized, frightened, in-
timidated, or threatened. See, e.g., Ind. Code § 35-45-10-1.
Doe’s actions do not come close to criminal conduct pun-
ishable as stalking. He did not “continually” or “repeatedly”
go to the public park; his ban order was based on a single
visit. See Landis v. State, 704 N.E.2d 113, 113 (Ind. 1998)
(holding that “the crime of stalking by its nature necessitates
proof of repeated or continuing acts”). Nor did Doe’s gaze
or proximity cause any specific person to feel frightened or
threatened; indeed, there is no evidence that anyone even
noticed Doe’s presence. Frazier v. Delco Elecs. Corp., 263 F.3d
663, 668 (7th Cir. 2001) (“The stalking victim who doesn’t
know that she is being stalked is not in fear of being in-
jured.”). Most importantly, Doe’s conduct—going to a
public park with improper thoughts about children previ-
ously unknown to him—did not harm any of the youths in
the park, unlike the terror caused by actions criminalized as
10
stalking.
10
See, e.g., Garza v. State, 736 N.E.2d 323, 325 (Ind. Ct. App. 2000)
(despite several requests to be left alone, stalker repeatedly con-
tacted victim, sent her flowers with a message that began “hate, an-
ger, bitterness, malice, venom, hellish prisons of our own making,”
and joined her health club); Johnson v. State, 721 N.E.2d 327, 330
(Ind. Ct. App. 2000) (stalker threatened to kill former girlfriend,
flattened her car tires, and came to her home on many occasions,
including three separate times the night he was arrested); Waldon
v. State, 684 N.E.2d 206, 207 (Ind. Ct. App. 1997) (despite exis-
tence of restraining order, victim encountered stalker on at least
six separate occasions near her dance studio within one-year
period).
No. 01-3624 51
III. CONCLUSION
In the City’s haste to take action to protect its children, an
admirable goal, both the majority and the City fail to ap-
prehend the possible secondary effects of this ban on the
very safety it seeks to ensure. As a society grappling with
the problem of pedophilia, see Crane, 534 U.S. at 414 (requiring
some lack-of-control determination in the civil commitment
of convicted pedophile), we have limited resources in our
arsenal to address the possibility that someone like Doe may
reoffend. Once released back into our society, a former sex
offender must feel free to seek therapy and must be sup-
ported in his efforts to control his urges rather than penal-
ized. Why deter former sex offenders from one of the few
treatments available? The importance of therapy cannot be
understated. See 51 Am. Jur. 3d § 5 (“the group (led by the
therapist) works on each member’s issues, such as denial,
guilt, the offender’s own sexual trauma, or lack of empathy
for the victim. This is a common technique for outpatient
treatment of sex offenders (often a condition of probation).
. .”). The First Amendment’s concern with freedom of
thought as a basis for the freedom of expression is high-
lighted by the facts of this case. The chilling effect of this
ruling, i.e., that the communication of one’s thoughts may
result in being banned from public spaces, is frightening. See
Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir. 2004)
(“The Supreme Court has often noted that a realistic threat
of arrest is enough to chill First Amendment rights.”). To
oversimplify the issue, as one of location or logistics (i.e., the
argument that Doe can simply think elsewhere) fails to
address the problem of chilled speech, or here thought, that
the First Amendment seeks to secure.
One cannot be a thinking member of society and not be
acutely aware of the critical problem of sex offenses against
children. The substance of Doe’s sexual fantasies about
52 No. 01-3624
children are repugnant and deplorable. Doe himself admits
that. But, of course, the fact that this court or the City of
Lafayette finds Doe’s thoughts offensive does not limit the
amount of First Amendment protection they are afforded.
See Free Speech Coalition, 535 U.S. at 245 (“It is also well
established that speech may not be prohibited because it con-
cerns subjects offending our sensibilities.”); Am. Booksellers
Assoc. v. Hudnut, 771 F.2d 323, 327 (7th Cir. 1985) (“Under
the First Amendment the government must leave to the
people the evaluation of ideas.”); Collin v. Smith, 578 F.2d
1197, 1200 (7th Cir. 1978) (noting that the First Amendment
covers protected speech even though it may be “repugnant
to the core values held generally by residents of this country”).
Despite our repudiation of the content of his thoughts, the
City of Lafayette may not punish Doe for his thinking alone,
for without protection from government intrusion into our
thoughts, the freedoms guaranteed by the First Amendment
11
are virtually meaningless.
11
The majority also addresses Doe’s argument that the ban order
violates a constitutionally-protected freedom to loiter. Cf. City of
Chicago v. Morales, 527 U.S. 41, 53 (1999) (plurality opinion)
(remarking that the freedom to loiter for innocent purposes is
protected by the Due Process Clause of the Fourteenth Amend-
ment). As I find the ban order violative of Doe’s First Amend-
ment right to freedom of thought, I find it unnecessary to reach
this issue and express no view on the question.
No. 01-3624 53
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-30-04