University of New Hampshire Law Review


[Excerpt] "A precarious balance and considerable tension exists between two competing legal interests – the essential, First Amendment-grounded human right to freedom of thought, on the one hand, and the desire to prevent harm and injury that might occur if thought is converted to action, on the other. To understand this tension, it is useful to start by considering three different and disturbing factual scenarios. Scenario 1: A man recently completed a prison term for the crime of assault with a deadly weapon. He now stands outside of Madison Square Garden in New York City. It is September 2, 2004. The man is an anarchist with radical ideas. More than anything else, however, he hates President George W. Bush, who will speak that night at Madison Square Garden. Like many protestors outside of the Republican National Convention, he chants the usual down-with-Bush slogans. However, this man also thinks about what it would be like to kill the President. He fantasizes about shooting President Bush as he watches the presidential motorcade arrive and he sees the President step out of his car to wave to the crowd. But the man does not act on his fantasies. After President Bush enters Madison Square Garden, the man peacefully leaves the scene and heads home. Scenario 2: A fourteen-year-old boy is often taunted by classmates at school because he is perceived to be a “freak.” The boy loves to play video games, both at home and at an arcade a block away from his school. His favorite games depict graphic images of violence, much like those played by Eric Harris and Dylan Klebold, the killers at Columbine High School. As he plays the games, he fantasizes about walking down the block, entering his school and killing three of his classmates who bully him the most. He admires Michael Carneal, a student near Paducah, Kentucky who came into school one day in 1997 and opened fire on some classmates, killing three students. Although the boy has access to a gun at home, he never brings it to school or converts his thoughts to action. He always goes home from the video arcade peacefully. Scenario 3: A man has “a long history of arrests and convictions for sexually related crimes.” Although now free from prison and nearly a decade removed from his last conviction, “he still has fantasies about children.” One day, he drives to a park and watches “five youths in their early teens playing on a baseball diamond.” While watching the children, he thinks about having sexual contact with them. However, “without having any contact with them,” he leaves the park peacefully, telling himself, “I’ve got to get out of here before I do something.” The man later states in a sworn affidavit, “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.” The first two of these three scenarios are fictitious, yet probably not too much of a stretch today, given both the anger and deep-seated feelings toward President Bush outside of the Republican National Convention and the school shootings across the United States that so often are blamed on media products like video games. The third scenario, involving the sexual predator that somewhat sounds as if it were ripped from the lead lines of an aging Jethro Tull song, is anything but fictitious. In fact, it gave rise to an important federal lawsuit, Doe v. City of Lafayette, Indiana, which has worked its way through the federal court system, from the district court level to a three-judge appellate court and, finally, in July 2004, to an en banc, 8-3 divided decision by the United States Court of Appeals for the Seventh Circuit. City of Lafayette is a unique case on the important human right of freedom to think. As Kenneth J. Falk, the attorney for defendant John Doe and the Legal Director of the Indiana Civil Liberties Union, told the Washington Times, “I am unaware of any other case in the country like this. This focuses on your thoughts. Usually we don’t know what people think unless thought is tied to action. It’s really unique to be banned [from parks] based on your thoughts.” While the issue in City of Lafayette of “whether the First Amendment protects a citizen who goes to a venue and thinks about committing a crime” has not been addressed by most courts in the United States, its relevance extends far beyond the narrow confines of its facts. Indeed, it would cover the first two hypotheticals set forth above, as well as any other scenario in which a person harbors a thought to violate a criminal statute. This issue extends to the driver who, when he is pulled over by a police officer for allegedly speeding, thinks to himself as the officer walks up to his car, “I’d love to kill that cop. Why isn’t he handling a real crime?” It also applies to the husband who holds an internal monologue and fantasizes about avenging the brutal rape of his wife while he watches the rapist in court being sentenced to only seven years in prison. The implications of the issue in City of Lafayette are immense. As a general principle, “[p]people don’t get arrested for what they write or what they think. They get arrested for what they do.” The holding in City of Lafayette, when taken to its logical–perhaps, from the dissent’s perspective, illogical–conclusion, suggests that this maxim may no longer hold true. While it may have been clear in the past that one could think about supporting terrorist groups like al-Qaida and their criminal activities without running afoul of the law, this may no longer be the case. The notion of an Orwellian thought-crime may indeed cross the minds of some readers of the 2004 opinion in City of Lafayette. This article examines and critiques the majority opinion of the Seventh Circuit Court of Appeals in City of Lafayette. The majority held that the city’s ban of John Doe, a convicted sex offender, from its parks because he once fantasized about molesting children while watching them play in the park does not violate the First Amendment right to freedom of thought. The July 2004 en banc opinion reversed the result of an earlier vacated decision by a three-judge panel of the same court just thirteen months before. The panel held that the park ban violated the unenumerated constitutional right of freedom of thought. The two judges who voted in favor of John Doe the first time the appellate court heard the case, Judge Ann Claire Williams and Judge Diane Pamela Wood, suddenly found themselves in a three-judge minority, along with Judge Ilana Diamond Rovner, in July 2004. They faced an eight-judge majority that included the prominent and powerful Richard Posner. However, as this article demonstrates, there is much more to this case that is interesting and unusual than the counterintuitive nature of the gender breakdown of the jurists. The three female jurists were the only appellate court judges to take the side of a convicted male sex offender, while all eight male judges in the en banc proceeding ruled against Doe. This decision has also become somewhat of a political litmus test for politicians in Indiana. As the Associated Press reported shortly after the Seventh Circuit handed down its decision, “[t]wo candidates who want to represent Lafayette in the Indiana House praised a federal court ruling barring a convicted child molester from city parks but said a statewide version of the ban is needed.” To put that into context, a decision from the judiciary rejecting a constitutional right to freedom of thought now has resulted in calls for the legislative branch to essentially codify that ruling. Joe Micon, the Democratic candidate, explicitly stated his willingness to change the constitution when he professed, “I would be supportive of legislation.” What candidate, of course, would not want to pander to parents and support such legislation? It is easy to run for office and to support legislation when it is strategically and narrowly framed, such as the concise and visceral frame of “protect children from a pedophile” rather than the more complex and less emotionally appealing frame of “protect a constitutional right from legislative usurpation.” In justifying his mission to ban John Doe from Lafayette’s parks, David Heath, mayor of Lafayette, Indiana, stated “parks are for children and parks are for families. Families should be able to send their children to our parks, knowing that they are not . . . being window shopped by a sexual predator.” Ironically, Heath’s statement reveals the defect in his city’s decision to ban John Doe from its parks. Window shopping means just that – looking in and peering from the outside. There is a major difference between looking and conduct. Doe merely watched; he did not engage in any conduct. Part II of this article provides background on the right to freedom of thought, including a discussion of recent United States Supreme Court analysis on this right. Part III then describes, analyzes, and critiques the Seventh Circuit’s 2004 en banc opinion holding that the City of Lafayette did not violate John Doe’s right to freedom of thought. Importantly, Part III contends there are at least four separate reasons, each grounded in First Amendment jurisprudence tied to freedom of expression, why the majority erred in its conclusion. These reasons go far beyond those articulated in the dissenting opinion in City of Lafayette and thus suggest new and additional rationales for reversal. Next, Part IV demonstrates the dangerousness of the precedent set by the majority’s reasoning as it might apply to other scenarios, including the first two hypothetical fact patterns laid out at the beginning of this article. Finally, the article concludes in Part V that the United States Supreme Court should accept certiorari in this case and reverse the Seventh Circuit’s decision."

Repository Citation

Clay Calvert, Freedom of Thought, Offensive Fantasies and the Fundamental Human Right to Hold Deviant Ideas: Why the Seventh Circuit Got it Wrong in Doe v. City of Lafayette, Indiana, 3 PIERCE L. REV. 125 (2005). Available at http://scholars.unh.edu/unh_lr/vol3/iss2/3