The U.S. Supreme Court said in the case Free Speech Coalition, "First Amendment freedoms are most in danger when the government seeks to control thought or justify its laws for that impermissible end."

Question

In the federal case Doe v. City of Lafayette, 377 F.3d 757 (7th Cir. 2004), Doe who was a sexual offender on parole was prohibited from going to any public park where children congregated because he had expressed sexual thoughts (not actions toward) children. How can lower courts reconcile U.S. Supreme Court precedent that thoughts are not criminal with the Doe case that restricts a man freedom of movement based on his thoughts alone? Which side do you agree with and why?
What will be an ideal response?

Answer 1

The Doe case is troubling for criminal law and procedure purists as in Doe's case, there is no actus reus which is a requirement for criminal liability to attach. The Seventh Circuit Court of Appeals reasoning in Doe is that, basically, sex offenders are in a different category of offender and, therefore, the legal system may take certain steps that they could not otherwise with a different group of offenders. I think the better answer is in following U.S. Supreme Court precedent and thoughts alone are not criminal. An analogy can be raised to the Louisiana death-row case where a man received the death penalty for the rape of his step daughter who survived. Kennedy v. Louisiana, cert. granted 07-343. Even though U.S. Supreme Court precedent said in Coker v. Georgia, no death for rape, the state of Louisiana distinguished its case by pointing out the high court prohibited a death sentence for rape of an adult woman who did not die and, in the Louisiana case, it was rape of a child. If and when both the Doe and the Louisiana death case are eventually heard by the U.S. Supreme Court (Kennedy scheduled 4/08), we will have a more definitive answer on the power of states and lower federal courts to ignore Supreme Court precedent.