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Tuesday, May 05, 2009

Courts - "The tricky sex offender case that could trip up one of the judges on the short list to replace Souter"

Remember the 2004 case of John Doe v. City of Lafayette? Here, from Feb. 24, 2005, is an ILB entry with links to earlier entries in the case, Here is the introduction to the dissent in the 8-3 en banc opinion of the 7th Circuit, issued July 30, 2004:

WILLIAMS, Circuit Judge, with whom ROVNER and DIANE P. WOOD, Circuit Judges, join in dissenting. 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. As this ban violates Doe’s First Amendment right to freedom of thought by impermissibly punishing him for those thoughts, I respectfully dissent.
Judge Wood is now among those being mentioned for nomination to the SCOTUS. Emily Bazelon last evening posted in Slate an outstanding three-page analysis of the 7th Circuit opinions in Doe, and Judge Woods' part in them. Some quotes:
The district judge [Sharp] who got the case ruled in favor of the city, based on Lafayette's interest in protecting the health and safety of its residents. A three-judge panel of the 7th Circuit heard the case on appeal. In a 2-1 split, Wood and Williams reversed the district court, finding that the decision to ban Doe from the public parks violated his First Amendment rights, while Judge Kenneth Ripple dissented. Williams wrote the majority opinion. Eleven judges of the 7th Circuit then reheard the case. (This second round is called en banc.) In an 8-3 ruling, the en banc majority reversed Williams' initial ruling. In this second round, Wood and Williams dissented, along with Judge Ilana Rovner. Ripple's dissent became the majority opinion, and Posner and Easterbrook joined it, along with five other judges.

Ripple's majority opinion for the en banc court frames the city's ban as punishing Doe not merely for his thoughts, but for "thought plus conduct." Ripple writes:

The inescapable reality is that Mr. Doe did not simply entertain thoughts; he brought himself to the brink of committing child molestation. He had sexual urges directed toward children, and he took dangerous steps toward gratifying his urges by going to a place where he was likely to find children in a vulnerable situation.

To characterize the ban as directed at 'pure thought' would require us to close our eyes to Mr. Doe's actions. ... We cannot ignore, nor can we say the law somehow commands the City to ignore, Mr. Doe's pedophilia and the history of his battle with that affliction.

Williams' dissent, on the other hand, points out that this is "a rare case where thoughts, as distinct from deeds, become publicly known." Williams notes: "It is clear on this record, that absent Doe's thoughts (and arguably his status as a pedophile …) the City would be uninterested in Doe's decision to go to the park that fateful day." We don't normally restrict people's liberties based on their thoughts, Williams argued, and we shouldn't; this is "a cornerstone of the criminal justice system," and it's a crucial limit on government power.

Posted by Marcia Oddi on May 5, 2009 11:51 AM
Posted to Courts in general