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Monday, April 16, 2018

Does the First Amendment Let Us Punish Pure Thought?

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).)

Posted by Adam Kolber on April 16, 2018 at 11:01 AM | Permalink


That case is great, Steven; thank you. In the key footnote, the attorney wrote that the "Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [appellee] and then said whatever was necessary to reach that conclusion . . . . " I don't know if the footnote was accurate in this case, but it surely is accurate in some cases. Though it's a little afield of my expertise and I read the case quickly, I'm surprised the attorney's footnote could be characterized as "making statements that he knew to be false, or with reckless disregard as to their truth or falsity concerning the integrity or qualifications of a judge . . . ." (The court may have a somewhat better argument that this was an inappropriate forum to air that statement, but that doesn't mean the statement was known to be false or made with reckless disregard.)

The piece actually lines up a bit with a piece I plan to blog about later in my stint: Supreme Judicial Bullshit--> https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3143722 . As for mind-reading, it probably has analogues in some sentencing cases where courts say that the defendant, though expressing remorse, was in some way insincere. What some of the comments in this post may point to, I suspect, is this: If freedom of thought is only protected when we make no expression and take no action whatsoever, then our protection of freedom of thought is rather weak.

Posted by: Adam Kolber | Apr 16, 2018 6:33:22 PM

Steven lubet ,

Let me just illustrate it to you :

Suppose that " James " is demanding an apology from " Daniel " . Daniel is replying that :

He would indeed , but : " just for the record " just for the protocol . Now :

Surely one can observe that it is not a sincere apology . Yet , this is not the problem , for what we deal here with , is not , the insincerity , but :

The clear manifestation of insincerity. The same goes with those judges . They haven't observed insincerity ( genuine , from the bottom of the heart ) but , the clear manifestation of it . That is to say , that it is not an apology , or , complete or appropriate , or effective one in their eyes , but simply they have used the wording " insincere " .


Posted by: El roam | Apr 16, 2018 5:39:18 PM

Steven lubet ,

Probably , he has been sanctioned due to an inappropriate expression and based on it , but without any expression there would be nothing . So , the insincerity , has to do rather with what was wrong in the expression of things , not with his thoughts. It could be concluded ( the insincerity) only from the content expressed. So , That was merely an intuitive impression of the judges . As such , it wasn't a thought crime , for such thing , doesn't exist , but the expression of it . Notwithstanding , thought can live independently , without any expression of it. As if you would hate someone for example , but due to given circumstances , or politically correct attitude , you would oppress your feelings , and act even politely and manifestly so .


Posted by: El roam | Apr 16, 2018 5:17:35 PM

In Matter of Wilkins, the Indiana Supreme Court suspended a lawyer for 30 days for insulting the appellate court in a footnote. The discipline was imposed in part because the majority deemed the attorney's apology insincere. In other words, he said the appropriate words (at his initiation) but he didn't get his mind right (with apologies to Cool Hand Luke).

I think that comes pretty close to a thought crime.

The cite is Matter of Wilkins, 777 N.E.2d 714 (2002).

On reconsideration, the court later reduced the penalty to censure.

Posted by: Steven Lubet | Apr 16, 2018 4:39:02 PM

James , I have illustrated it to you ,through more brutal and extreme illustrations , this has been done , just for the introduction to it , and the mere methodology , yet :

One can illustrate it through simple and common split in consciousness while acting , like : hypocrisy or simply having diplomatic attitude . That is to say , that on one hand one feels inside of him one thing , on the other , he acts contrary to what he feels ( what you feel , are your thoughts actually ). In such case as such , language is not expression of nothing has to do with thoughts .


Posted by: El roam | Apr 16, 2018 4:10:31 PM

Just correction :

should be : would stay seemingly oblivious ...... and not " what stay " of course .


Posted by: El roam | Apr 16, 2018 3:44:45 PM

James ,

The idea that : " No thoughts are autonomous from language in Davidson's view " is really baseless with all due respect . It is enough to demonstrate it through sexual arousal ( erection for example , autonomous one ,while person in social circumstances what stay seemingly oblivious ) . You could take even trauma , psychological trauma ( post trauma ) where uncontrolled and autonomous flash backs are formed in the mind ( whether visualized , whether other senses like scent and so forth are chasing the person ) . Even a dream is autonomous expression of course ( while sleeping ) sometimes the same source , would provide you , while awaken , output of such .

Absolutely incorrect with all due respect ….


Posted by: El roam | Apr 16, 2018 3:42:22 PM

Thanks, James. Regarding Davidson and thought/language, if courts use their traditional approaches to these matters, I believe they would focus not on whether thought is "language," but whether it is expressive. Now maybe all language is expressive in some sense, but for legal purposes, the focus seems to be on communication between people. So the card counter may be thinking in a way that is not distinct from language but that alone may be insufficient to qualify as "expressive" for courts. (I'm not endorsing any approach, just explicating how I think courts might look at it.)

Regarding whether it's anomalous to say "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," I'm not suggesting that no one could make such a claim. But I do think it seems inconsistent with the court's own claim that the First Amendment prohibits punishing pure thought. Moreover, I think it cuts against the views of most people who believe in a right to free thought. Few people seem to say, "you should have a right to free thought unless your thoughts are extremely dark or socially abhorrent." But maybe people would feel differently in a world where we had the ability to more accurately assess people's thoughts.

Posted by: Adam Kolber | Apr 16, 2018 3:23:42 PM

@el roam

"The whole idea of criminalizing , is that , the perpetrator , could avoid the commission of the act , but has chosen not to ( look for example for insanity as defense ) . But , how can spontaneous and autonomous thoughts, can be avoided ?? So , just due to it , it is impossible ."

Exactly. This is the way I think a Jungian would argue. The problem with the Court's dicta isn't a 1A problem it is an 8A problem. It is cruel to punish someone for a the formation of a mental image that is "spontaneous and autonomous"--the very definition of a psychological intuition. It would be like punishing a rock for falling off a cliff or a tree falling in an forest devoid of mammalian life. Sure the thought may be socially unacceptable but where is the intended harm or actual harm in it?

Note that Davidson would reject this approach; he would do so because he would reject the idea that any thought can be "spontaneous and autonomous." No thoughts are autonomous from language in Davidson's view.

Posted by: James | Apr 16, 2018 3:01:32 PM

This fits into some of my own recent research. What I would say is that I am dubious of the notion that one can isolate such a thing as "pure thought" that is separate and distinct from from language use. The work of Donald Davidson and Richard Rorty both were founded on the notion that language is thought and thought language. See Davidson's influential "A coherence theory of truth and knowledge."

"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. "

This isn't as anomalous as the OP seems to think it is. It follows naturally from psychological notions of intuition, especially Jungian ones.

Posted by: James | Apr 16, 2018 2:41:24 PM

Here illustration for conspiracy ( Texas penal code ) . I quote :

title 4. inchoate offenses

chapter 15. preparatory offenses

Sec. 15.02. CRIMINAL CONSPIRACY. (a) A person commits criminal conspiracy if, with intent that a felony be committed:

(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and

(2) he or one or more of them performs an overt act in pursuance of the agreement.

(b) An agreement constituting a conspiracy may be inferred from acts of the parties.

End of quotation :

Now , surly one can read , that what is needed , is not mere fantasy , but , intent to commit it . One needs one or more persons . One needs an agreement . One needs certain act .
Those are not thoughts , typically thoughts , don't have any external expression or interface , and reside inside of one person of course , although can be shared , but both can't think together typically .


Posted by: El roam | Apr 16, 2018 12:39:50 PM

curious ,

I wrote " typically " , for sometimes the legislator , treats conspiracy as actually the act itself ( especially while dealing with drugs , considered as particularly severe offence ) . But anyway , has got nothing to do , with thoughts . Conspiracy is an act , not a thought . You do actually something , you reach an agreement with someone else , and both are having certain plan conceived for action simply. But this is not thoughts !!

Adam ,

Of course conspiracy is a voluntarily action . Of course it is a sort of agreement . But yet voluntarily .But thoughts , typically , can be or should be not once , autonomous and spontaneous . So how to avoid it ?? if recognized at first place that one couldn't avoid it , then , no punishment is justified !! As a matter of basic principal in criminal law , that must reign .


Posted by: El roam | Apr 16, 2018 12:26:19 PM

El roam: It's true that, in this case, Doe admitted having the thoughts at issue. That's part of why I find the card counting example interesting. We can confidently assert that someone is counting cards based on his or her betting pattern. Agreed that it would be interesting (and likely distasteful) to imagine "comprehensive legislation" devoted to thought crimes.

Curious: If you are referring to the idea that some jurisdictions will punish a conspiracy even if it takes no overt action to implement the agreement, I would say that courts are treating the agreement itself as a voluntary action. (The criminal law does, in fact, have a voluntary act requirement, though I've seen little discussion of the constitutional basis for such a requirement. There is some discussion of the topic in the more narrow context of drug addiction.)

Posted by: Adam Kolber | Apr 16, 2018 12:07:50 PM

How about the fact that the federal drug conspiracy statute, 21 USC 846, has been read not to include any overt act requirement? (I believe by the Supreme Court, though I don't have the cite.) That seems like punishment of pure thought to me...

Posted by: Curious | Apr 16, 2018 12:00:22 PM

Interesting post , hell of complications , but just some basic order ( much less than basic even ) :

When one suggests , that thoughts are punishable , one suggests that thoughts would constitute an offense ( no matter what kind of , but some of course ). Now , what kind of offense shall it be strategically so ?? let's take the minimum :
Typically , in every penalty code , the minimum as offenses , would be what is called " derivative offences " . That is to say , almost violated or transgressed actually , but not finally . Like : attempting to …. Soliciting to ….. conspiring to …. Etc….then , the sentence , may typically be reduced ( since , no main offense actually has been commissioned , but derivative one ) .

When we deal with thoughts , we deal with far greater less than those minimums . That would require of course , very radical and comprehensive legislation . Moreover :

The whole idea of criminalizing , is that , the perpetrator , could avoid the commission of the act , but has chosen not to ( look for example for insanity as defense ) . But , how can spontaneous and autonomous thoughts, can be avoided ?? So , just due to it , it is impossible .

One should not forget , in that case presented ( Doe v. city of Lafayette ) it seems that , that pedophile has admitted something that couldn't be monitored or caught . Moreover :
It seems that the judges , were possibly influenced , by the idea that he is a pedophile . One should not forget , pedophiles are typically under restraining orders , not to approach at first place such places like parks , crowded with kids . So , things were confused here it seems , but :

Coherent legislation, that is a different animal , vastly so !!


Posted by: El roam | Apr 16, 2018 11:57:15 AM

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