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3 Pierce L. Rev. 125 (2004-2005)
Freedom of Thought, Offensive Fantasies and the Fundamental Human Right to Hold Deviant Ideas: Why the Seventh Circuit Got It Wrong in Doe v. City of Lafayette, Indiana

handle is hein.journals/plr3 and id is 131 raw text is: Freedom of Thought, Offensive Fantasies and
the Fundamental Human Right to Hold Deviant Ideas:
Why the Seventh Circuit Got it Wrong in
Doe v. City of Lafayette, Indiana
A precarious balance and considerable tension exists between two
competing legal interests - the essential, First Amendment-grounded' hu-
man right to freedom       of thought,2 on the one hand, and the desire to pre-
vent harm and injury that might occur if thought is converted to action, on
the other. To understand this tension, it is useful to start by considering
three different and disturbing factual scenarios.
Scenario 1: A man recently completed a prison term for the crime of
assault with a deadly weapon.3 He now stands outside of Madison Square
Garden in New York City. It is September 2, 2004. The man is an anar-
chist with radical ideas. More than anything else, however, he hates Presi-
dent George W. Bush, who will speak that night at Madison Square Gar-
den.4   Like many protestors outside of the Republican National Conven-
tion,5 he chants the usual down-with-Bush slogans. However, this man
* Associate Professor of Communications & Law and Co-Director of the Pennsylvania Center for
the First Amendment at The Pennsylvania State University. B.A., 1987, Communication, Stanford
University; J.D. (Order of the Coil), 1991, McGeorge School of Law, University of the Pacific; Ph.D.,
1996, Communication, Stanford University. Member, State Bar of California. The author thanks
Cornelius Cornelssen, Rachel Frankel and Lesley O'Connor of The Pennsylvania State University for
their assistance that contributed to this article.
1. The First Amendment to the United States Constitution provides in relevant part that Congress
shall make no law ... abridging the freedom of speech, or of the press. U.S. Const. amend. I. The
Free Speech and Free Press Clauses have been incorporated through the Fourteenth Amendment Due
Process Clause to apply to state and local government entities and officials. See Gitlow v. N.Y., 268
U.S. 652, 666 (1925).
2. See Wooley v. Maynard, 430 U.S. 705, 714 (1977) (writing that the right offreedom of thought
protected by the First Amendment against state action includes both the right to speak freely and the
right to refrain from speaking at all) (emphasis added).
3. See e.g. Cal. Penal Code Ann. § 245 (West 2005) (articulating the crime of assault with a deadly
4. See generally Ken Herman, Bush Promises a Safer America; Stay the Course in War on Terror,
President Urges, Atlanta J. & Const. 1A (Sept. 3, 2004) (available at LEXIS, News library, ATLJNL
file) (describing President George W. Bush's party nomination acceptance speech at the Republican
National Convention on September 2, 2004 at Madison Square Garden).
5. See generally David Zucchino, The Race To The White House; Protests Meet a Nimble NYPD;
Police Tracked Rallies During the Republican National Convention with the Web and Bike, L.A. Times

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