Doe v. City of Lafayette, Indiana

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Williams
• Citation: Doe v. City of Lafayette, Indiana, 334 F.3d 606 (7th Cir. 2003)
• Decision Date: 27 June 2003
• Docket Number: No. 01-3624.,01-3624.
• Parties: John DOE, Plaintiff-Appellant, v. CITY OF LAFAYETTE, Indiana, Defendant-Appellee.

334 F.3d 606

John DOE, Plaintiff-Appellant, v. CITY OF LAFAYETTE, Indiana, Defendant-Appellee.

No. 01-3624.

United States Court of Appeals, Seventh Circuit.

Argued February 11, 2002.

Decided June 27, 2003.

Rehearing Granted and Opinion Vacated August 8, 2003.

Kenneth J. Falk (argued), Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiff-Appellant.

Jerome L. Withered (argued), Withered & Corrigan, Lafayette, IN, for Defendant-Appellee.

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, 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 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, 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...