                            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. 4:00CV0076AS—Allen Sharp, Judge.
                         ____________
   ARGUED FEBRUARY 11, 2002—DECIDED JUNE 27, 2003
                   ____________


 Before RIPPLE, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
  WILLIAMS, Circuit Judge. John Doe was banned for life
from all park property in the City of Lafayette, Indi-
ana—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.
2                                                 No. 01-3624

                     I. BACKGROUND
  John Doe is a convicted sex offender. His criminal his-
tory 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 out-
side 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 psycholo-




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 deposi-
tion 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.
No. 01-3624                                                       3

gist 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 appear-
ance in the park. Their discussion focused on the nature
of Doe’s January visit to the park and his criminal his-
tory, 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 pre-
issuance 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


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.
4                                                   No. 01-3624

includes several large parks, many smaller neighbor-
hood parks, a zoo, a golf course, a sports complex, a base-
ball 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 result-
ing 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 prop-
erty 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



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 re-
cently 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.
No. 01-3624                                                 5

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 acknowl-
edges 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 (1943), the Court upheld a challenge by Jehovah’s
Witnesses to West Virginia’s requirement that all school-
children 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. 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 (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 pow-
er 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
6                                                No. 01-3624

he may watch. Our whole constitutional heritage rebels
at the thought of giving government the power to con-
trol men’s minds.” Id. at 565. 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 govern-
ment to exercise “the right to control the moral content
of a person’s thoughts.” Id. at 565-66; see 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”); see also Wooley v.
Maynard, 430 U.S. 705, 714-15 (1977) (overturning re-
quirement 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 (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 (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 imperatively calls
for attachment than any other it is the principle of free
thought . . . .”).
  Indeed, even when an individual’s ideas concern im-
moral 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 pornogra-
phy, 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
No. 01-3624                                                     7

that Congress could not justify prohibition of the con-
stitutionally-protected speech. Id. at 256. 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. Given the long-standing
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 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 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 en-
courage him to strike again. This fear—that thoughts
alone may encourage action—is not enough to curb pro-
tected 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. 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).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. We need not entertain further the exercise
of determining what state interests might outweigh a


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 ob-
scenity or may “incite” unlawful action.
8                                                  No. 01-3624

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 (“[T]he Court’s First Amendment cases draw vital
distinctions between words and deeds, between ideas and
conduct.”); Reidel, 402 U.S. at 356 (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 Amend-
ment). This explains why the dissent’s reliance on cases
such as United States v. O’Brien, 391 U.S. 367, 376 (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 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.”).
  Our conclusion is further reinforced by a fundamental
understanding of the bounds of punishable action. The
maxim that cogitationis poenam nemo patitur (no one is
punishable solely for his thoughts) is a cornerstone of the


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 (1999) (plurality opinion) (remarking that the free-
dom 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.
No. 01-3624                                                    9

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 punish-
ing 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 (1962). In Robinson, the Supreme Court struck
down a California statute that made addiction to nar-
cotics illegal. Id. at 666-67. Because the statute required
no illegal act, but criminalized mere status as a drug ad-
dict, it violated the Eighth Amendment’s prohibition
against cruel and unusual punishment. Id. at 667. This
distinction was further refined in Powell v. Texas, 392 U.S.
514, 532-34 (1968), where the Court explained that al-
though 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



9
  The proscription against penalizing for ideas alone has been
recognized for centuries, see 4 William Blackstone, Commen-
taries 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 pun-
ish for thoughts alone.”).
10                                              No. 01-3624

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 crim-
inal 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 his-
torical 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). 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 poten-
tially thinking offensive or objectionable thoughts. De-
spite 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
No. 01-3624                                             11

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 success-
fully 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 (1973) (“The fantasies of a drug addict are his
own and beyond the reach of government, but govern-
ment 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 ac-
tions taken by Doe here, present clear examples of ac-
tions 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 chil-
dren 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
12                                              No. 01-3624

attempted child molestation charge when defendant al-
legedly 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 inten-
tionally; 2) engage in a course of conduct involving con-
tinuous or repeated harassment; 3) that would cause a
reasonable person to feel terrorized, frightened, intimi-
dated, 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 in-
jured.”). Most importantly, Doe’s conduct—going to a pub-
lic park with improper thoughts about children previously
unknown to him—did not harm any of the youths in the
No. 01-3624                                                   13

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 deplor-
able. 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 pro-
hibited because it concerns subjects offending our sensi-
bilities.”); 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 cov-
ered 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.



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 re-
peatedly 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 threat-
ened 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).
14                                                 No. 01-3624

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




  RIPPLE, Circuit Judge, dissenting. The majority invali-
dates the City of Lafayette’s (“the City” or “Lafayette”)
action because, in its view, the ban order against Mr.
Doe violates the First Amendment.1 In my view, the City
has adopted a reasonable proscription designed to pro-
tect a vulnerable part of the population, its children,
against the danger of a relapse by Mr. Doe. Therefore, I
respectfully dissent.
  The majority and Mr. Doe base their position on the
conclusory proposition that banning Mr. Doe from the
park constitutes “punishment” for “pure thought.” See
Appellant’s Br. at 9. This view requires that we close
our eyes to Mr. Doe’s actions in that park in January of
2000. It also requires that we give short shrift to Mr. Doe’s
condition as an admitted pedophile who, despite some
progress in dealing with his condition, continues to have



1
   As the district court and the majority note, Mr. Doe does
not challenge the procedures that led to the ban. For purposes
of this appeal, therefore, we must assume, without deciding, that
the ban was adopted in full compliance with the requirements
of procedural due process. Mr. Doe also does not contend that
the ban is overbroad. Like my colleagues, I am puzzled by Mr.
Doe’s decision not to raise the issues of procedural due process
and overbreadth in this appeal.
No. 01-3624                                                    15

difficulty controlling his urges.2 Indeed, it is difficult to
see how the City’s ban impacts expression protected by
the First Amendment. Not only was Mr. Doe’s conduct
lacking the expressive element necessary to invoke the
First Amendment’s protection, but his thoughts, if ex-
pressed, would fall into categories of expression the Su-
preme Court has held to be unprotected.


                                A.
  The majority opinion rests on the assumption that the
ban punishes Mr. Doe solely for his thoughts. In support
of that characterization, Mr. Doe relies on the unexcep-
tional proposition that “it would be nonsensical to ex-
tend the protection of the Constitution to speech, but
allow the government to invade thoughts.” Appellant’s Br.
at 9. In my view, our concern here ought to be stated in
terms that recognize, more comprehensively and pragmati-
cally, the actual situation confronting the City as well
as the parents and children who look to that City for
protection as they go about their every day activities. This
case is not about Mr. Doe’s thoughts. It is about the dan-
ger he presents to the children when, because of these
thoughts, he goes to the park to be near children and to
achieve sexual gratification. Mr. Doe and the majority
take the position that the First Amendment requires
that the City admit him to its public parks while know-
ing that he poses an immediate safety threat to the chil-
dren there.


2
   It is important to note that Mr. Doe acknowledges that he
will never be cured of his pedophilia and that a successful
recovery will mean that he has learned to control his urges, not
that those urges have gone away. Mr. Doe, therefore, is more
likely to act on such urges than individuals without this afflic-
tion. Notably, he has three convictions for sexual offenses against
minors.
16                                                No. 01-3624

  My colleagues write that the ban punishes Mr. Doe for
his fantasies and therefore punishes him for “pure
thought.” Such a characterization might be accurate if
Lafayette had banned him from public parks because he
had admitted to having sexual fantasies about children in
his home. But Mr. Doe did not simply indulge such fanta-
sies in his own home. Nor did he go to the park simply
to think and contemplate. He entered the park in search
of sexual gratification induced by the children playing
there. Mr. Doe did not simply entertain thoughts; he had
sexual urges directed toward children, and he took sev-
eral steps toward gratifying those urges. He went to not
one, but two parks3 in search of children at play in order
to achieve sexual gratification. At the second park, he
spent between 15 and 30 minutes observing children at
play, and consequently became sexually aroused.4 In short,
he engaged not only in thought but in activity directed
toward an illegal and very harmful end. The City’s focus
in implementing the ban was Mr. Doe’s actions—directed
toward this dangerous, illegal and harmful end. The City
restricted Mr. Doe’s ability to enter public parks where
children are often unsupervised because Mr. Doe went to
a park for the purpose of sexually gratifying himself by
his proximity to children.
  The City has not tried to curb Mr. Doe’s thoughts. It has
not enacted an ordinance banning Mr. Doe, or any other



3
  The transcript of Mr. Doe’s deposition is clear that Mr. Doe
drove first to one park (Columbian) and then a second (Murdock).
Mr. Doe characterized his activity as “cruising.” R.23, Attach-
ment 4 at 28. When the City’s attorney asked for clarification,
Mr. Doe admitted that he was “mostly” looking for children. Id.
4
  Mr. Doe stated that seeing the children in the park caused
him to have thoughts “about the possibility of, you know, having
some kind of sexual contact with the kids.” R.23, Attachment 4
at 29.
No. 01-3624                                               17

individual, from having sexual fantasies about children.
Lafayette is justifiably concerned with Mr. Doe’s efforts
to act on those thoughts and, therefore, with his proximity
to unsupervised children. Mr. Doe’s actions in January
of 2000 demonstrate that his recovery is incomplete and
that there is a very real possibility of a future assault.
Thus, upon learning of Mr. Doe’s trip to Columbian and
Murdock Parks in response to his sexual desires, Lafayette
banned Mr. Doe from city parks. The Lafayette School
Corporation also banned Mr. Doe from its premises, a ban
that Mr. Doe does not challenge. Both of these restric-
tions are reasonable preventative measures designed to
keep Mr. Doe away from locations where unsupervised
children may be present.
   Mr. Doe contends that he is being singled out for this
treatment. He points to the many convicted sex offenders
living in the Lafayette/West Lafayette area who are not
banned from public parks and claims that the City’s ac-
tion is therefore arbitrary. According to the record in
this case, however, the City does not have knowledge
that relapses or near-relapses involving other sex offen-
ders have occurred on city property. There is certainly
no indication in the record that Lafayette would respond
to any other similar case in a different manner. By his
own admission, Mr. Doe had entered the park for the
purpose of obtaining sexual gratification by observing
children. The City certainly need not act in an ostrich-
like fashion with respect to this information. It had an
obligation to act prudently.
  Mr. Doe contends that “[i]t surely would be safer for the
City of Lafayette if it could enter the thoughts of every
citizen to try to determine the potential for criminal activ-
ity . . . . Such a broad brush approach would banish many
innocent persons because of thoughts that would never
blossom into reality.” Appellant’s Br. at 14. This submis-
sion might be apt if Lafayette had adopted an ordinance
18                                                 No. 01-3624

banning all individuals who had sexual fantasies about
children from entering public parks. But the City was
entitled to take into consideration the reality that, unlike
most individuals who have such fantasies, Mr. Doe poses,
by his own admission, a far greater probability of acting
on those fantasies and endangering the children. As Jus-
tice Holmes wrote, “the character of every act depends
upon the circumstances in which it is done.” See Schenck
v. United States, 249 U.S. 47, 52 (1919). We cannot accu-
rately assess the City’s action without taking into ac-
count Mr. Doe’s pedophilia. This affliction certainly ought
not doom him to permanent exile from society. Nor may
society, acting through the government, harass or
marginalize him. His actions do, however, render reason-
able some restrictions that would be inappropriate if
applied to someone without such a history.
  The law has long recognized that not every individual
is equally capable of controlling his desires and prevent-
ing them from becoming actions that endanger others.
Here, we have an individualized finding, based upon an
admission, that Mr. Doe belongs to that group of per-
sons who are more susceptible to having sexual desires
with respect to children and to acting on those urges. The
City of Lafayette has a compelling interest in protect-
ing children from these individuals. Mr. Doe moved be-
yond a momentary desire to seek sexual gratification from
children to a calculated effort to act on those desires. The
fact that, on that particular day in January 2000, the
sexual gratification took the form of merely observing the
children at play is fortunate for those children and for
Mr. Doe.5 It does not change, however, the fact that his
urge, at least for an hour or so, was able to overpower his


5
   Mr. Doe testified that, while in the park he said to himself,
“I’ve got to get out of here before I do something . . . .” R.23,
Attachment 4 at 27.
No. 01-3624                                                   19

ability to control it. The City of Lafayette did not violate
his First Amendment rights by taking the action that it
did to protect its children. It need not expose the children
to the risk that, on a future date, Mr. Doe’s loss of con-
trol will be as short-lived.


                               B.
  I cannot fault our colleague in the district court for
determining that Mr. Doe was not involved in any con-
duct protected by the First Amendment. He did not go
into the park to advocate the legalization of sexual rela-
tions 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. Instead, he went to two parks in Lafayette, stop-
ping at the second, to observe children at play in order to
gratify the sexual urge he felt as he was driving home from
work. He was aware of his propensity in this regard and
indeed of his history of sexual assault. Nevertheless, he
engaged in a sort of psychiatric brinksmanship by placing
himself in a situation that increased substantially the
possibility of his acting on these impulses. I cannot join
the majority in believing that this conduct is somehow
deserving of First Amendment protection.
  Expression is a crucial element of a First Amendment
claim.6 The presence of expressive content can transform a


6
  Although not relevant to our decision today, the First Amend-
ment also protects the right not to express one’s beliefs or
affiliations. See Wooley v. Maynard, 430 U.S. 705, 714 (1977)
(“We begin with 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.”). Additionally, the First Amendment
                                                   (continued...)
20                                                 No. 01-3624

garden variety violation of federal law into an act requiring
constitutional scrutiny. See United States v. O’Brien, 391
U.S. 367, 376 (1968) (articulating and applying a four-part
test to determine whether federal law forbidding
the destruction of draft cards violated the First Amend-
ment; one element of that test requires that the stated
governmental interest in regulating the conduct be “unre-
lated to the suppression of free expression”); see also Arcara
v. Cloud Books, Inc., 478 U.S. 697, 707 (1986) (stating
that constitutional scrutiny will be applied “only where it
was conduct with a significant expressive element that
drew the legal remedy in the first place”). The infusion
of expressive content into the normal human function of
sleeping can create a federal case requiring the Supreme
Court’s resolution. See Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 292-93 (1984) (accepting, without
deciding, the Court of Appeals’ conclusion “that over-
night sleeping in connection with the demonstration is
expressive conduct protected to some extent by the First
Amendment”). Expression, in all its forms, is the lynchpin
of the First Amendment’s guarantee of free speech. Indeed,
the Supreme Court of the United States has read the
protections of the First Amendment broadly, extending this
important guarantee to protect a variety of situations,
including the reading of obscene materials in one’s home,
see Stanley v. Georgia, 394 U.S. 557 (1969), symbolic
expression, see Cohen v. California, 403 U.S. 15 (1971),
profanity, see Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495
(1952), lewd expression, see Hustler Magazine v. Falwell,
485 U.S. 46 (1988), and flag burning, see Texas v. Johnson,
491 U.S. 397 (1989).


6
  (...continued)
protects an individual’s rights of freedom of association and
of privacy by protecting the confidentiality of group member-
ship lists. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,
462-63 (1958).
No. 01-3624                                                21

  Although the Court has protected all manner of offen-
sive and degrading expression, it has never seen fit to
extend the protections of the Amendment to non-expres-
sive conduct. The First Amendment is not implicated
when the government seeks to regulate activity which
“manifests absolutely no element of protected expression.”
See Arcara, 478 U.S. at 705. The Court also has noted
that “it 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 ex-
pressive.” Cmty. for Creative Non-Violence, 468 U.S. at 293
n.5. This emphasis on expression as the threshold fac-
tor in determining the applicability of the First Amend-
ment runs throughout our free speech jurisprudence. See
Laurence Tribe, American Constitutional Law (2d ed. 1988)
at 785 (chapter covering First Amendment’s protection of
speech entitled “Rights of Communication and Expression”).
  Even if I could accept that First Amendment concerns
are somehow at stake in Mr. Doe’s situation, his claim
would still fail because it implicates at least two areas
that the Supreme Court has declared to be unprotected
by the First Amendment’s free speech guarantee. See
Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)
(“There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of
which has never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or ‘fighting’ words . . . .”).
  First, assuming arguendo the applicability of the First
Amendment, Mr. Doe’s urges 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). Mr. Doe
was, in essence, inciting himself to unlawful action. He
knew of his propensity to such urges and he neverthe-
22                                               No. 01-3624

less took steps not to curb them but to encourage them.
The judiciary has been reluctant to uphold restrictions
on pure speech when the state argues that the speech
could be proscribed because it was likely to incite others
to action. See Johnson, 491 U.S. at 409 (“Thus, we have
not permitted the government to assume that every ex-
pression of a provocative idea will incite a riot, but
have instead required careful consideration of the actual
circumstances surrounding such expression . . . .”). Part
of the reasoning of these decisions is that impassioned
speech will prompt citizens of a free and democratic so-
ciety to reflect and to respond: “[A] function of free speech
under our system of government is to invite dispute. It
may indeed best serve its high purpose when it induces
a condition of unrest, creates dissatisfaction with condi-
tions as they are, or even stirs people to anger.” Terminiello
v. Chicago, 337 U.S. 1, 4 (1949). Here, the audience is
not a rational electorate who is able to evaluate and
formulate a measured response; no mind other than Mr.
Doe’s fuels this urge and decides whether to act upon it.
  Mr. Doe’s urges, if considered expression, also would
constitute obscenity, and not be deserving of Constitu-
tional protection. See Ronald D. Rotunda & John E.
Nowak, Treatise on Constitutional Law (3d ed. 1999) § 20.56
at 708-09. Indeed, the Supreme Court has distinguished
between child pornography and pornography featuring
adults. See Osborne v. Ohio, 495 U.S. 103, 109-11 (1990)
(holding that government interests prohibiting the pos-
session of child pornography are much stronger than
those supporting the prohibition of pornography gen-
erally). States are permitted to prohibit the possession and
distribution of child pornography that does not meet the
constitutional standard for obscenity. See New York v.
Ferber, 458 U.S. 747, 756 (1982).
  Attempting to analyze, even hypothetically, Mr. Doe’s
situation in terms of the First Amendment points up the
No. 01-3624                                                23

futility of such an exercise. The plain reality is that Lafay-
ette’s ban is not directed toward the damage done by
Mr. Doe’s thoughts but rather toward the action that
accompanied them and the even more dangerous actions
that might accompany future episodes. In short, the
City’s ban is not aimed at any communicative impact of
Mr. Doe’s thoughts; it is aimed at Mr. Doe’s actions and
the threat he poses to children playing in Lafayette’s public
parks. See Arcara, 478 U.S. at 704-05; see also Tribe, supra
at 791-92.


                             C.
  Banning Mr. Doe from Lafayette’s parks will not re-
strict the flow of information and ideas. Nor will it pre-
vent him from participating in public life or realizing
his potential as an individual. I do not believe the First
Amendment argument submitted by Mr. Doe has any merit.
Accordingly, I must respectfully dissent.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—6-27-03
