Seventh Circuit on Thought Crimes

Here is a very interesting en banc decision, just issued by the United States Court of Appeals for the Seventh Circuit. A divided panel of that court had concluded that the City of Lafayette, Indiana could not -- consistent with the Constitution -- ban a convicted sex offender (whose victims included children) from City parks. The City's ban came after City officials learned that the offender -- "Mr. Doe" -- was in the habit of "cruising" City parks, and engaging in sexual fantasies involving the children playing in the parks.

The United States District Court rejected Doe's First and Fourteenth Amendment challenges to the ban, and disagreed with the claim that the ban effectively punished Doe for his thoughts. In its en banc decision, the Court of Appeals agreed, per my colleague Judge Ripple, that the ban did not violate the First Amendment: "It is difficult to ascertain how the freedom of self-expression is implicated" because Doe's conduct -- i.e., "cruising" the parks for kids -- was not "infused with an expressive element." The Court concluded, "we have nothing approaching 'expression'; instead, we have predation." Apart from the First Amendment issue, the Court concluded also that the ban did not punish Doe for pure, or mere, thoughts -- thoughts that the City disapproves -- but rather (assuming the ban constitutes "punishment" at all) for the expression of those thoughts in dangerous conduct.

There's a lot more here, and the dissent is well worth reading. I had planned to teach the panel's decision in my criminal law course; the case grabbed my attention, touching as it does on a line from the Confiteor: "in my thoughts, and in my words . . ."

Rick