John Doe v. City of Lafayette, Indiana

334 F.3d 606, 2003 WL 21480355

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 8, 2003
• Docket: 01-3624
• Status: Published

Opinions

WILLIAMS, Circuit Judge.

John Doe was banned for life from all park property in the City of Lafayette, Indiana — including a golf course, sports stadium, and city pools. The City did not provide notice or a hearing before instituting the ban, nor did it allow Doe to appeal its decision. Doe filed suit against the City, arguing that the ban violates his First Amendment right to freedom of thought and a fundamental right under the Fourteenth Amendment to loiter in public parks. The district court granted summary judgment in favor of the City. We reverse, finding the ban violates the First Amendment.

I. BACKGROUND

John Doe is a convicted sex offender. His criminal history includes convictions 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, and he claims that his urges are triggered by emotional vulnerability, typically in the late 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 a self-help group for sex offenders. 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, although he recently began taking medication to control his sexual urges.

In January 2000, Doe was driving home from work and began to have sexual thoughts about children. He drove to a City of Lafayette park¹ and watched several youths in their early teens playing on a baseball 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. Because he was upset about the incident, Doe contacted his psychologist to report the incident.² He also reported the incident to his self-help group.

An anonymous source reported Doe’s January visit to the park, and the thoughts he had while he was there, to his former probation officer. Following this unidentified report, the probation officer contacted the Lafayette Police Department, which prompted a conversation 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 serving a sentence or on probation.³ As a result of this conversation, the City Parks Department issued an order 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 preissuance review of the ban, nor was Doe afforded an opportunity to appeal.⁴

The ban order is both geographically and temporally broad. The City of Lafayette’s extensive park system includes several large parks, many smaller neighborhood parks, a zoo, a golf course, a sports complex, a baseball stadium, 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 ordinarily are issued for a week or, at most, a summer. In this case, the ban order against Doe has no termination date.⁵

Doe sued the City seeking to lift the ban, challenging ■ it under the First and Fourteenth Amendments. On cross motions for summary judgment, the district court granted the City’s motion, finding neither a violation of the First Amendment nor a Fourteenth Amendment problem with the ban. Doe appeals.

II. ANALYSIS

Given the bases on which Doe appeals, we are faced with a question not typically before a court: may a city constitutionally ban one of its citizens from public property based on its discovery of that individual’s immoral thoughts? This scenario is quite unusual, as it is a rare case where thoughts, as separated from deeds, become known. Technology has not yet produced a mind-reader,⁶ and thus 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 indication of his thinking, is the basis for its actions.

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, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), the Court upheld a challenge by Jehovah’s Witnesses to West Virginia’s requirement that all schoolchildren participate in a pledge and salute honoring the United States flag. The Court ruled that such an obligation would impermissi-bly 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. Indeed, it recognized that freedom to hold beliefs about politics, religion, and other matters is a cornerstone of liberty: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Id.

Although Barnette’s challenge to the West Virginia enactment 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, 89 S.Ct. 1243, 22 L.Ed.2d 542 (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, 89 S.Ct. 1243. 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 rebels at the thought of giving government the power to control men’s minds.” Id. at 565, 89 S.Ct. 1243. Once again, the Court tied this freedom to fundamental principles of the First Amendment, 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 thoughts.” Id. at 565-66, 89 S.Ct. 1243; see United States v. Reidel, 402 U.S. 351, 355-56, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971) (affirming that Stanley focused on the “freedom of mind and thought and on the privacy of one’s home”); see also Wooley v. Maynard, 430 U.S. 705, 714-15, 97 S.Ct. 1428, 51 L.Ed.2d 752 (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”); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) (noting that “at the heart of the First Amendment is the notion that an individual should be free to believe as he will”); Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (“The right of freedom of speech and press includes ... freedom of thought ....”); United States v. Schwimmer, 279 U.S. 644, 654-55, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting) (“[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought ....”).

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, 122 S.Ct. 1389, 152 L.Ed.2d 403 (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, 122 S.Ct. 1389. The Court struck down the ban, finding that Congress could not justify prohibition of the constitutionally-protected speech. Id. at 256, 122 S.Ct. 1389. There, the fact that possession of virtual child pornography may cause sexually immoral thoughts about children was not enough to justify banning it. Id. at 252-53, 122 S.Ct. 1389. Given the longstanding recognition by the High Court, we analyze the City of Lafayette’s ban order with the principle that freedom of the mind occupies a highly-protected position in our constitutional heritage.

The City defends the ban as a measure to protect its youth from a person with a history of sex offenses whom they fear may harm the City’s children. As part of this argument, the City seems to imply that Doe’s thoughts about children and close proximity to them may encourage him to strike again. This fear — that thoughts alone may encourage action — is not enough to curb protected thinking. For example, in Free Speech Coalition, the government proposed a similar theory in defense of the ban of virtual child pornography, arguing that virtual child pornography whets the appetites of pedophiles. 535 U.S. at 253, 122 S.Ct. 1389. The Court squarely rejected that theory: “The government ‘cannot constitutionally premise legislation on the desirability of controlling 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, 89 S.Ct. 1243).⁷ Although vigilance by the police in preventing crime is laudable, “[t]he prospect of crime ... by itself does not justify laws suppressing protected speech.” Id. at 245, 122 S.Ct. 1389. We need not entertain further the exercise of determining what state interests might outweigh a person’s right to think, as the City’s only articulated interest in this case does not justify its ban order.⁸

We recognize that although 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, 122 S.Ct. 1389 (“[T]he Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct.”); Reidel, 402 U.S. at 356, 91 S.Ct. 1410 (private thoughts or fantasies are outside the First Amendment, but selling or buying obscenity in the mail is not protected activity and may be proscribed without violating the First Amendment). This explains why the dissent’s reliance on cases such as United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), finding no First Amendment violation absent expression, is unhelpful. These cases focus on the distinction between mere conduct and expression and do not contradict longstanding principles regarding protection of thought. Cf. Free Speech Coalition, 535 , 122 S.Ct. 1389 (“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”).

Our conclusion is further reinforced by a fundamental understanding of the bounds of punishable action. The maxim that cog-itationis poenam nemo patitur (no one is punishable solely for his thoughts) is a cornerstone of the American common law system of criminal justice that has shaped many of the constitutional boundaries of criminal law.⁹ 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).

This axiomatic principle is illustrated by the discernment between punishment 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, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). In Robinson, the Supreme Court struck down a California statute that made addiction to narcotics illegal. Id. at 666-67, 82 S.Ct. 1417. 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, 82 S.Ct. 1417. This distinction was further refined in Powell v. Texas, 392 U.S. 514, 532-34, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (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, 88 S.Ct. 2145. 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, 88 S.Ct. 2145. 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 plaintiffs contention of his status as a pedophile). Here Doe has committed no such act.

The dissent argues that Doe’s steps of driving to the park and watching children constitute punishable action. Yet the circumstances make clear that the ban order issued by the City resulted from its concern about Doe’s fantasies about children. The City did not receive any complaints from the children in the park, and it does not allege that anyone was at all 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. Despite the prevalence of his behavior, only Doe has been banned from the park for it. 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 City does not dispute that it is Doe’s thoughts that distinguish him from all other park users.

What is more, Doe’s behavior 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, we would not sanction criminal punishment of an individual with a criminal 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 robbing it. It goes without saying that in this hypothetical the individual would not have taken an action that could support punishment. Or, as a different example, punishment of a drug addict who stands outside a dealer’s house craving a hit but successfully resists the urge to enter and purchase drugs would be offensive to our understanding of the bounds of the criminal law. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67-68, 93 S.Ct. 2628, 37 L.Ed.2d 446 (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.”) Despite the City’s suggestions at oral argument, 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 we recognize 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 we assume 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 robbing 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. See, e.g., United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979) (holding that mere intent to commit a crime is not sufficient to constitute attempt).

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 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, intimidated, or threatened. See, e.g., Ind.Code § 35-45-10-1. Doe’s actions do not come close to criminal conduct punishable 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 injured.”). Most importantly, Doe’s conduct — going to a public park with improper thoughts about children previously unknown to him — did not harm any of the youths in the park, unlike the terror caused by actions criminalized as stalking.¹⁰

We are acutely aware of the critical problem of sex offenses against children. We find the substance of Doe’s sexual fantasies about children repugnant and deplorable. 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, 122 S.Ct. 1389 (“It is also well established that speech may not be prohibited because it concerns 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 protects covered 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 this thinking alone, for without protection from government intrusion into our thoughts, the freedoms guaranteed by the First Amendment would be meaningless.

III. CONCLUSION

Accordingly, we REVERSE the judgment of the district court and REMAND for proceedings consistent with this opinion.

1 . The dissent points out that Doe came in contact with two parks, but we think 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 . Doe’s psychologist testified that his ability to go to the park and manage his impulses is a positive step in his treatment and helps integrate Doe into a more normal lifestyle.

3 . 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, so we need 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).

4 . Although we 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. This court continues to be intrigued, as it was at oral argument, by Doe’s strategic decision to forgo this straightforward claim.

5 . Doe also has not challenged the ban on the ground that it is unconstitutionally overbroad.

6 . The form such mind-reading technology might take was recently the topic of a popular Steven Spielberg movie, Minority Report. The movie depicts the year 2054, in which police rely on three psychic "precognitives” that see crimes before they happen. Using these projections, the police arrest and incarcerate individuals for crimes committed only in the minds of the arrestees.

7 . The Court's holding in Free Speech Coalition directly rejects the dissent's puzzling attempt to carve out categories of thoughts that should be "unprotected'' because they might relate to obscenity or may "incite” unlawful action.

8 . Doe also argues that the ban order violates a constitutionally-protected freedom to loiter. Cf. City of Chicago v. Morales, 527 U.S. 41, 53, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality opinion) (remarking that the freedom to loiter for innocent purposes is protected by the Due Process Clause of the Fourteenth Amendment). In view of our holding that the ban order violates Doe's First Amendment right to freedom of thought, we find it unnecessary to reach this issue and express no view on the question.

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 modem 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.”).

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 contacted victim, sent her flowers with a message that began "hate, anger, 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 existence of restraining order, victim encountered stalker on at least six separate occasions near her dance studio within one-year period).