In my prior post, I noted a live question as to how, if at all, the First Amendment protects freedom of thought in cases (such as card counting) that might be deemed to lack expression. While the Supreme Court has talked a good show about freedom of thought, its precedents say little about how the Amendment would apply to a case implicating free thought but not expression.
The Seventh Circuit, however, has addressed the question more directly. In Doe v. City of Lafayette, Doe went to a public park, sat on a bench, and spent about fifteen to thirty minutes watching several children in their early- to mid-teens play in the park. Doe admitted having sexual thoughts about the children, including urges to expose himself or have sexual contact with them. But at least in part because of the high number of children present, his thoughts “weren’t realistic at the time” and “were just thoughts.” Doe was banned from entering the park and claimed that doing so violated his First Amendment rights.
While a three-judge panel agreed, the Seventh Circuit, sitting en banc, held otherwise. The en banc court said the ban was imposed because of Doe’s conduct (namely, going to the park) and only incidentally burdened his thoughts. So even this case doesn't perfectly get at the question of punishing pure thought. But interestingly, the Seventh Circuit speculated about how the First Amendment might operate independent of expression, stating in a footnote that if Doe’s pedophilic urges triggered First Amendment scrutiny, they would fall under an exception, just like child pornography does:
Even if we were to determine that Mr. Doe’s sexual urges somehow triggered First Amendment scrutiny, they would be excepted from First Amendment protection under the incitement and obscenity doctrines. Given the context in which the urges occurred and the action they precipitated, they were, in a very real sense, “directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action.” . . . Furthermore, Mr. Doe’s urges, if they triggered First Amendment scrutiny, would be characterized as a form of child pornography, the possession and distribution of which has been held unprotected by the Supreme Court.
Of course, the court quickly reiterated that because Doe’s conduct did not involve expression, “it is quite unrealistic even to talk about
these doctrines in this case.” The quoted comments are nevertheless puzzling for at least two reasons. First, the Seventh Circuit mistakenly asserts that if Doe’s urges triggered First Amendment scrutiny, they would constitute a form of unprotected child pornography. In Ashcroft v. Free Speech Coalition, the Supreme Court struck down federal legislation that banned so-called “virtual” child pornography that appears to depict minors but does not actually depict real people. Even if Doe had a vivid imagination, were he to accurately draw the images in his head on paper, they would presumably constitute protected virtual child pornography rather than unprotected actual child pornography.
Second, the en banc Seventh Circuit seems mistaken when it suggested more broadly that freedom of thought has categorical exceptions in the way that freedom of expression does, if we accept its own admission that “[a] government entity no doubt runs afoul of the First Amendment when it punishes an individual for pure thought.” The Seventh Circuit’s view that the First Amendment protects pure thought, in conjunction with its assertion that there are excepted categories of thought, suggests that we can punish people solely for thoughts that fall under an exception. If so, it would mean we could punish people merely for having thoughts that would be libelous if expressed but that are never actually expressed. We couldn’t punish people merely for having fantasies and urges to rape directed at adults (protected thoughts) but could punish people merely for fantasies and urges directed at children (unprotected thoughts). Perhaps the Seventh Circuit intended such exceptions to only apply to thought combined with action or believed that other constitutional provisions would come into play, but it never qualified its discussion, and it is not obvious how the Seventh Circuit would justify excepting some categories of thought from protection but not others.
In short, the Supreme Court has never resolved whether the First Amendment protects thought alone or only when intertwined with expression. The Seventh Circuit suggests that they must be intertwined, but its discussion seems internally inconsistent or at least counterintuitive. (Adapted from Two Views of First Amendment Thought Privacy, 18 U. Penn. J. Const. L. 1381 (2016) (citations omitted).) (Originally posted at Prawfsblawg.)
