dissenting.
The majority invalidates the City of Lafayette’s (“the City” or “Lafayette”) action because, in its view, the ban order against Mr. Doe violates the First Amendment.1 *614In my view, the City has adopted a reasonable proscription designed to protect a vulnerable part of the population, its children, against the danger of a relapse by Mr. Doe. Therefore, I respectfully dissent.
The majority and Mr. Doe base their position on the conclusory proposition that banning Mr. Doe from the park constitutes “punishment” for “pure thought.” See Appellant’s Br. at 9. This view requires that we close our eyes to Mr. Doe’s actions in that park in January of 2000. It also requires that we give short shrift to Mr. Doe’s condition as an admitted pedophile who, despite some progress in dealing with his condition, continues to have difficulty controlling his urges.2 Indeed, it is difficult to see how the City’s ban impacts expression protected by the First Amendment. Not only was Mr. Doe’s conduct lacking the expressive element necessary to invoke the First Amendment’s protection, but his thoughts, if expressed, would fall into categories of expression the Supreme Court has held to be unprotected.
A.
The majority opinion rests on the assumption that the ban punishes Mr. Doe solely for his thoughts. In support of that characterization, Mr. Doe relies on the unexceptional proposition that “it would be nonsensical to extend the protection of the Constitution to speech, but allow the government to invade thoughts.” Appellant’s Br. at 9. In my view, our concern here ought to be stated in terms that recognize, more comprehensively and pragmatically, the actual situation confronting the City as well as the parents and children who look to that City for protection as they go about their every day activities. This case is not about Mr. Doe’s thoughts. It is about the danger he presents to the children when, because of these thoughts, he goes to the park to be near children and to achieve sexual gratification. Mr. Doe and the majority take the position that the First Amendment requires that the City admit him to its public parks while knowing that he poses an immediate safety threat to the children there.
My colleagues write that the ban punishes Mr. Doe for his fantasies and therefore punishes him for “pure thought.” Such a characterization might be accurate if Lafayette had banned him from public parks because he had admitted to having sexual fantasies about children in his home. But Mr. Doe did not simply indulge such fantasies in his own home. Nor did he go to the park simply to think and contemplate. He entered the park in search of sexual gratification induced by the children playing there. Mr. Doe did not simply entertain thoughts; he had sexual urges directed toward children, and he took several steps toward gratifying those urges. He went to not one, but two parks3 in search of children at play in order to achieve sexual gratification. At the second park, he spent between 15 and 30 minutes observing children at play, and consequently became sexually aroused.4 In short, he *615engaged not only in thought but in activity directed toward an illegal and very harmful end. The City’s focus in implementing the ban was Mr. Doe’s actions — directed toward this dangerous, illegal and harmful end. The City restricted Mr. Doe’s ability to enter public parks where children are often unsupervised because Mr. Doe went to a park for the purpose of sexually gratifying himself by his proximity to children.
The City has not tried to curb Mr. Doe’s thoughts. It has not enacted an ordinance banning Mr. Doe, or any other individual, from having sexual fantasies about children. Lafayette is justifiably concerned with Mr. Doe’s efforts to act on those thoughts and, therefore, with his proximity to unsupervised children. Mr. Doe’s actions in January of 2000 demonstrate that his recovery is incomplete and that there is a very real possibility of a future assault. Thus, upon learning of Mr. Doe’s trip to Columbian and Murdock Parks in response to his sexual desires, Lafayette banned Mr. Doe from city parks. The Lafayette School Corporation also banned Mr. Doe from its premises, a ban that Mr. Doe does not challenge. Both of these restrictions are reasonable preventative measures designed to keep Mr. Doe away from locations where unsupervised children may be present.
Mr. Doe contends that he is being singled out for this treatment. He points to the many convicted sex offenders living in the Lafayette/West Lafayette area who are not banned from public parks and claims that the City’s action is therefore arbitrary. According to the record in this case, however, the City does not have knowledge that relapses or near-relapses involving other sex offenders have occurred on city property. There is eertainly no indication in the record that Lafayette would respond to any other similar case in a different manner. By his own admission, Mr. Doe had entered the park for the purpose of obtaining sexual gratification by observing children. The City certainly need not act in an ostrichlike fashion with respect to this information. It had an obligation to act prudently.
Mr. Doe contends that “[i]t surely would be safer for the City of Lafayette if it could enter the thoughts of every citizen to try to determine the potential for criminal activity .... Such a broad brush approach would banish many innocent persons because of thoughts that would never blossom into reality.” Appellant’s Br. at 14. This submission might be apt if Lafayette had adopted an ordinance banning all individuals who had sexual fantasies about children from entering public parks. But the City was entitled to take into consideration the reality that, unlike most individuals who have such fantasies, Mr. Doe poses, by his own admission, a far greater probability of acting on those fantasies and endangering the children. As Justice Holmes wrote, “the character of every act depends upon the circumstances in which it is done.” See Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919). We cannot accurately assess the City’s action without taking into account Mr. Doe’s pedophilia. This affliction certainly ought not doom him to permanent exile from society. Nor may society, acting through the government, harass or marginalize him. His actions do, however, render reasonable some restrictions that would be inappropriate if applied to someone without such a history.
*616The law has long recognized that not every individual is equally capable of controlling his desires and preventing them from becoming actions that endanger others. Here, we have an individualized finding, based upon an admission, that Mr. Doe belongs to that group of persons who are more susceptible to having sexual desires with respect to children and to acting on those urges. The City of Lafayette has a compelling interest in protecting children from these individuals. Mr. Doe moved beyond a momentary desire to seek sexual gratification from children to a calculated effort to act on those desires. The fact that, on that particular day in January 2000, the sexual gratification took the form of merely observing the children at play is fortunate for those children and for Mr. Doe.5 It does not change, however, the fact that his urge, at least for an hour or so, was able to overpower his ability to control it. The City of Lafayette did not violate his First Amendment rights by taking the action that it did to protect its children. It need not expose the children to the risk that, on a future date, Mr. Doe’s loss of control will be as short-lived.
B.
I cannot fault our colleague in the district court for determining that Mr. Doe was not involved in any conduct protected by the First Amendment. He did not go into the park to advocate the legalization of sexual relations between adults and minors. He did not go into the park to display a sculpture, read a poem or perform a play celebrating sexual relations between adults and minors. Instead, he went to two parks in Lafayette, stopping at the second, to observe children at play in order to gratify the sexual urge he felt as he was driving home from work. He was aware of his propensity in this regard and indeed of his history of sexual assault. Nevertheless, he engaged in a sort of psychiatric brinksmanship by placing himself in a situation that increased substantially the possibility of his acting on these impulses. I cannot join the majority in believing that this conduct is somehow deserving of First Amendment protection.
Expression is a crucial element of a First Amendment claim.6 The presence of expressive content can transform a garden variety violation of federal law into an act requiring constitutional scrutiny. See United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (articulating and applying a four-part test to determine whether federal law forbidding the destruction of draft cards violated the First Amendment; one element of that test requires that the stated governmental interest in regulating the conduct be “unrelated to the suppression of free expression”); see also Arcara v. Cloud Books, Inc., 478 U.S. 697, 707, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986) (stating that constitutional scrutiny will be applied “only where it was conduct with a significant expressive element that drew the legal remedy in the *617first place”). The infusion of expressive content into the normal human function of sleeping can create a federal case requiring the Supreme Court’s resolution. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 292-93, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (accepting, without deciding, the Court of Appeals’ conclusion “that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment”). Expression, in all its forms, is the lynchpin of the First Amendment’s guarantee of free speech. Indeed, the Supreme Court of the United States has read the protections of the First Amendment broadly, extending this important guarantee to protect a variety of situations, including the reading of obscene materials in one’s home, see Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), symbolic expression, see Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), profanity, see Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), lewd expression, see Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), and flag burning, see Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).
Although the Court has protected all manner of offensive and degrading expression, it has never seen fit to extend the protections of the Amendment to non-expressive conduct. The First Amendment is not implicated when the government seeks to regulate activity which “manifests absolutely no element of protected expression.” See Arcara, 478 U.S. at 705, 106 S.Ct. 3172. The Court also has noted that “it is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. To hold otherwise would be to create a rule that all conduct is presumptively expressive.” Cmty. for Creative Non-Violence, 468 U.S. at 293 n. 5, 104 S.Ct. 3065. This emphasis on expression as the threshold factor in determining the applicability of the First Amendment runs throughout our free speech jurisprudence. See Laurence Tribe, American Constitutional Law (2d ed.1988) at 785 (chapter covering First Amendment’s protection of speech entitled “Rights of Communication and Expression”).
Even if I could accept that First Amendment concerns are somehow at stake in Mr. Doe’s situation, his claim would still fail because it implicates at least two areas that the Supreme Court has declared to be unprotected by the First Amendment’s free speech guarantee. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words ....”).
First, assuming arguendo the applicability of the First Amendment, Mr. Doe’s urges were, in a very real sense, “directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Mr. Doe was, in essence, inciting himself to unlawful action. He knew of his propensity to such urges and he nevertheless took steps not to curb them but to encourage them. The judiciary has been reluctant to uphold restrictions on pure speech when the state argues that the speech could be proscribed because it was likely to incite others to action. See Johnson, 491 U.S. at 409, 109 S.Ct. 2533 (“Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a *618riot, but have instead required careful consideration of the actual circumstances surrounding such expression .... ”). Part of the reasoning of these decisions is that impassioned speech will prompt citizens of a free and democratic society to reflect and to respond: “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Here, the audience is not a rational electorate who is able to evaluate and formulate a measured response; no mind other than Mr. Doe’s fuels this urge and decides whether to act upon it.
Mr. Doe’s urges, if considered expression, also would constitute obscenity, and not be deserving of Constitutional protection. See Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law (3d ed.1999) § 20.56 at 708-09. Indeed, the Supreme Court has distinguished between child pornography and pornography featuring adults. See Osborne v. Ohio, 495 U.S. 103, 109-11, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (holding that government interests prohibiting the possession of child pornography are much stronger than those supporting the prohibition of pornography generally). States are permitted to prohibit the possession and distribution of child pornography that does not meet the constitutional standard for obscenity. See New York v. Ferber, 458 U.S. 747, 756, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).
Attempting to analyze, even hypothetically, Mr. Doe’s situation in terms of the First Amendment points up the futility of such an exercise. The plain reality is that Lafayette’s ban is not directed toward the damage done by Mr. Doe’s thoughts but rather toward the action that accompanied them and the even more dangerous actions that might accompany future episodes. In short, the City’s ban is not aimed at any communicative impact of Mr. Doe’s thoughts; it is aimed at Mr. Doe’s actions and the threat he poses to children playing in Lafayette’s public parks. See Arcara, 478 U.S. at 704-05, 106 S.Ct. 3172; see also Tribe, supra at 791-92.
C.
Banning Mr. Doe from Lafayette’s parks will not restrict the flow of information and ideas. Nor will it prevent him from participating in public life or realizing his potential as an individual. I do not believe the First Amendment argument submitted by Mr. Doe has any merit. Accordingly, I must respectfully dissent.
. As the district court and the majority note, Mr. Doe does not challenge the procedures that led to the ban. For purposes of this appeal, therefore, we must assume, without deciding, that the ban was adopted in full compliance with the requirements of procedural due process. Mr. Doe also does not contend that the ban is overbroad. Like my colleagues, I am puzzled by Mr. Doe's decision not to raise the issues of procedural due process and overbreadth in this appeal.
.It is important to note that Mr. Doe acknowledges that he will never be cured of his pedophilia and that a successful recovery will mean that he has learned to control his urges, not that those urges have gone away. Mr. Doe, therefore, is more likely to act on such urges than individuals without this affliction. Notably, he has three convictions for sexual offenses against minors.
. The transcript of Mr. Doe’s deposition is clear that Mr. Doe drove first to one park (Columbian) and then a second (Murdock). Mr. Doe characterized his activity as "cruising.” R.23, Attachment 4 at 28. When the City’s attorney asked for clarification, Mr. Doe admitted that he was "mostly” looking for children. Id.
. Mr. Doe stated that seeing the children in the park caused him to have thoughts "about *615the possibility of, you know, having some kind of sexual contact with the kids.” R.23, Attachment 4 at 29.
. Mr. Doe testified that, while in the park he said to himself, ''I've got to get out of here before I do something .... ” R.23, Attachment 4 at 27.
. Although not relevant to our decision today, the First Amendment also protects the right not to express one's beliefs or affiliations. See Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) ("We begin with the proposition that the right of freedom 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.”). Additionally, the First Amendment protects an individual’s rights of freedom of association and’ of privacy by protecting the confidentiality of group membership lists. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462-63, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).