The tricky sex offender case voted on by Judge Diane Wood.

The law, lawyers, and the court.
May 4 2009 6:41 PM

Future Dangerousness

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

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The district judge 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.

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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.

Williams also points out that the city's ban could actually disserve its goal of keeping children safer by deterring other sex offenders from seeking therapy. And she offers this analogy: "By way of comparison, courts would not sanction criminal punishment of an individual with a criminal history of bank robbery (a crime, like child molestation, with a high rate of recidivism …) simply because she or he stood in the parking lot of a bank and thought about robbing it."

But in other settings, the law does allow for punishment based on future dangerousness. In 2000 and 2002, the Supreme Court twice upheld a Kansas law that provides for the civil commitment of a convicted sex offender, after he has finished serving his criminal sentence, if a court finds that he "cannot control his dangerous behavior." The majority opinion in the Doe case relied on those Supreme Court rulings. When I called Yale law professor Robert Post, a First Amendment scholar, he brought up the Kansas law, too. "If you can be kept in jail because of future dangerousness, why couldn't you be kept out of a park?" Post said. "It's a mischaracterization to say this has anything to do with this man's thoughts. The case should be decided on the basis of his dangerousness."

Geoffrey Stone, also a First Amendment expert, says the problem with the case is that Doe didn't frame his appeal correctly. He failed to argue that he'd been banned from the parks without due process—a hearing or a chance to appeal. And so Williams and Wood had to "meld the due process and First Amendment arguments together." Stone cautioned me not to make too much of the case. "I suppose it's of interest because people will say Judge Wood doesn't care about the dangers pedophiles pose to society. But that is a wild misreading. The dissent is really about the need for appropriate procedures and limitations before the city imposes a ban like this. And that's a perfectly reasonable position."

It's striking that Wood and Williams weren't afraid to rule in favor of a sex offender who had made his struggle for self-control clear. That doesn't surprise people who know Wood. "You couldn't find a more principled person," said my friend Aleeza Strubel, an employment-discrimination lawyer who clerked for Wood. "She didn't make decisions based on what the reaction would be."

Wood has taken other bold stances: The right is already after her for her 2001 ruling in NOW v. Scheidler, which allowed a lower-court judge to prevent anti-abortion protesters, nationwide, from blockading clinics. Wood's ruling made novel use of federal anti-racketeering law, and the Supreme Court overturned her in 2003. You could argue that this is precisely the sort of flat-out liberal, unafraid jurist the court now needs. Or you could argue that this is one fight the Obama administration could do without. Either way, the White House should take a look at Doe v. City of Lafayette. If it hasn't already.