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

Abstract

[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. 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. […] 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.