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.
I. BACKGROUND
Convicted sex offenders, particularly child molesters, are a reviled group. Child molestation is one of the most heinous and deplorable crimes, attacking our most precious resource, our children. John Doe is a member of this understandably vilified group. His criminal history includes convictions for child molestation, voyeurism, exhibitionism, and window peeping. His last conviction was in 1991, ten years before this litigation. Doe’s crimes were committed in schools, a convenience store, and outside private residences (though none in a park). He admits that his urges are triggered by emotional vulnerability, typically in the late evening. As a result of these criminal convictions, Doe has been hospitalized, imprisoned, under house arrest, and on probation. He has been in active psychological treatment since 1986, and voluntarily attends group therapy. Doe admits he still has fantasies about children, and his psychologist opines that he will likely have these urges for the rest of his life.
In January 2000, Doe was driving home from work and stopped at Murdock Park, in the City of Lafayette,1 and watched five youths in their early teens playing on a baseball diamond. Doe admits that, while observing them, he thought about having sexual contact with the children. After watching them for 15-30 minutes, and without having any contact with them, Doe left the park. “I said to myself: I’ve got to get out of here before I do something, so I left.” Doe Dep. at 27.2
*775Once Doe left the park, he sent an emergency page to his psychologist’s answering service, which immediately contacted the doctor. Doe explained what occurred and expressed that he was upset about the incident. As part of his treatment, his psychologist suggested that he discuss the incident with his sexual addicts anonymous (SAA) group, which was to meet a few days later. The doctor also focused on the fact that Doe was able to control his urge and leave the park as a positive step in his rehabilitation.3 As the longest non-offending member of the SAA group, its members were very disappointed by Doe’s disclosure. In response to this incident, Doe began voluntarily receiving weekly shots of Depo-Provera to aid in suppressing his urges.
An anonymous source reported Doe's January visit to the park, and the thoughts he had while he was there, to Doe’s former probation officer. The probation officer then contacted the Lafayette Police Department, which prompted a conversation between the Police Chief, the Superintendent of the Lafayette Parks Department, and a City attorney regarding Doe’s appearance in the park. Their discussion focused on the nature of Doe’s January visit to the park and his criminal history, although all acknowledge that Doe was no longer serving a sentence or on probation.4 As a result of this conversation, the City Parks Department issued an order permanently banning Doe from entering any City park property at any time and for any purpose under threat of arrest for trespass. The City did not provide any pre-issuance review of the ban, nor was Doe afforded an opportunity to appeal.5
The ban order is both geographically and temporally broad. The City of Lafayette’s extensive park system includes several large parks, many smaller neighborhood párks, a zoo, a golf course, a sports complex, a baseball stadium, and several pools. Typically, ban orders are issued by the City against those who have vandalized park property or interfered with park patrons. The resulting bans ordinarily are issued for a week or, at most, a summer. In this case, the ban order against Doe has no termination date.6
II. ANALYSIS
Doe’s First Amendment appeal raises several questions not typically before a *776court. May a city constitutionally ban one of its citizens from public property based on its discovery of that individual’s immoral thoughts? Is being banned from public property a “punishment”? Does the First Amendment protect a citizen’s right to think about committing a crime, even if he has committed that crime in the past? This scenario is quite unusual, as it is a rare case where thoughts, as distinct from deeds, become publicly known. Most thinking, unless purposefully revealed to others, remains one’s own. Unlike other cases in which the state becomes aware of an individual’s mental state because of his or her actions, here the City acknowledges that Doe’s own revelation of his thoughts, not any outward expression demonstrating his thinking, is the basis for its actions.
A. The First Amendment prohibits government control over a citizen’s thoughts.
The freedom of individuals to control their own thoughts has been repeatedly acknowledged by the Supreme Court. In West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), the Court upheld a challenge by Jehovah’s Witnesses to West Virginia’s requirement that all schoolchildren participate in a pledge and salute honoring the United States flag. The Court ruled that such an obligation would impermissi-bly infringe upon “the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Id.
Although Barnette’s challenge to the West Virginia enactment was based on religious conviction, id., the guarantee of freedom of the intellect has not been limited to beliefs concerning politics or religion. In Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), Stanley was convicted under Georgia law for possessing obscene material when pornographic films were found in his home. The Supreme Court reversed Stanley’s conviction, finding a right to peruse obscene material in the privacy of one’s home. Id. at 565-66, 89 S.Ct. 1243. A central focus of the Court’s discussion was the quintessential principle that the government’s power does not extend to control of a person’s thoughts: “a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Id. at 565, 89 S.Ct. 1243. Once again, the Court tied this freedom to fundamental principles of the First Amendment, holding that “it is wholly inconsistent with the philosophy of the First Amendment” for the government to exercise “the right to control the moral content of a person’s thoughts.” Id. at 565-66, 89 S.Ct. 1243.7
*777The Court has also recognized the intersection of freedom of the mind, protected by the First Amendment, with the right to privacy. See Griswold, 381 U.S. at 483, 85 S.Ct. 1678 (“[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion.”); see also Lawrence v. Texas, 539 U.S. 558, 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”); Claudia Tuchman, Does Privacy Have Four Walls? Salvaging Stanley v. Georgia, 94 Colum. L.Rev. 2267, 2282 (1994) (discussing freedom of thought and reasoning that “[fjreedom of mind focuses on the privacy of all personal thoughts — -the ‘abnormal’ as well as the intellectually worthy.”).
Indeed, even when an individual’s ideas concern immoral thoughts about child pornography, the Court has steadfastly maintained the right to think freely. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 252-53, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). In Free Speech Coalition, the Court considered federal legislation that criminalized virtual child pornography, so named because although the images appear to depict minors, they were produced without using real children. Id. at 239, 122 S.Ct. 1389. The Court struck down the ban, finding that Congress could not justify prohibition of the constitutionally-protected speech. Id. at 256, 122 S.Ct. 1389. There, the fact that possession of virtual child pornography may ignite sexually immoral thoughts about children was not enough to justify banning it. Id. at 252-53, 122 S.Ct. 1389. Given the Court’s long-standing recognition of the freedom of thought, the City of Lafayette’s ban order must be analyzed in light of the principle that freedom of the mind occupies a highly-protected position in our constitutional heritage.
The City defends the ban as a measure to protect its youth from a person with a history of sex offenses whom it fears may harm its children in the future. As part of this argument, the City and the majority seem to equate a propensity to commit crime with an inability to control one’s impulses, implying that Doe’s thoughts about children and close proximity to them will lead him to strike again. First, propensity and volitional capacity are distinct aspects of conduct. See Kansas v. Crane, 534 U.S. 407, 414, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (recognizing that the Constitution does not permit the commitment of a pedophile without some lack-of-control determination thereby recognizing the possibility that a pedophile may control his urges). Further, this fear — that an individual’s thoughts may encourage action — is not enough to curb protected thinking.
The Court in Stanley addressed the line between crime prevention and protected speech, stating,
we believe that in the context of private consumption of ideas and information we should adhere to the view that ‘[ajmong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law.’
*778394 U.S. at 566-67, 89 S.Ct. 1243 (emphasis added).
Further, in Free Speech Coalition, the government proposed a similar theory in defense of the ban of virtual child pornography. 535 U.S. at 253, 122 S.Ct. 1389. Attempting to prevent the potential indirect harm to children posed by pedophiles, Congress reasoned that the virtual pictures may serve to “whet” the appetites of pedophiles and may be used to convince a reluctant child to participate in sexual acts. Id. at 241, 122 S.Ct. 1389. In line with its previous stance in Stanley, the Court squarely rejected this theory: “The government ‘cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.’ First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end.” Id. (quoting Stanley, 394 U.S. at 566, 89 S.Ct. 1243). Citing criminal statutes 18 U.S.C. §§ 2241 and 2251, which prohibit sexual abuse, the Court reasoned that “Congress may pass valid laws to protect children from abuse,” however, “[t]he prospect of crime ... by itself does not justify laws suppressing protected speech.” Id. at 245, 122 S.Ct. 1389 (emphasis added).
The majority aptly points out that while pure thoughts are protected by the First Amendment, non-expressive actions are not. First Amendment jurisprudence is fastened upon the critical distinction between thinking and acting on those thoughts. See, e.g., Free Speech Coalition, 535 U.S. at 253, 122 S.Ct. 1389 (“[T]he Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct.”); Reidel, 402 U.S. at 356, 91 S.Ct. 1410 (private thoughts or fantasies are protected by the First Amendment, but selling or buying obscenity in the mail is not protected activity and may be proscribed without violating the First Amendment). The majority argues that Doe’s steps of driving to the park and watching children constitute non-expressive conduct. The question then is whether the First Amendment protects a citizen who goes to a venue and thinks about committing a crime? It is clear on this record, that absent Doe’s thoughts (and arguably his status as a pedophile, which I address below) the City would be uninterested in Doe’s decision to go to the park that fateful day. Moreover, divorcing Doe’s thoughts from the City’s decision to ban him also strips the City of its alleged “rational basis” for its decision.
Recognizing that no child was directly harmed by Doe’s decision to go to the park, the issue here, like that in Free Speech Coalition, is the scope of the City’s power to curb protected thought under the First Amendment to prevent criminal conduct. In the context of child pornography and the potential for child abuse, New York v. Ferber, 458 U.S. 747, 759-60, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) and Osborne v. Ohio, 495 U.S. 103, 110-11, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), reflect the delineation between prohibiting conduct which actually harms children by making them victims and conduct which facilitates criminal conduct. For example, in Ferber, the Court upheld the prohibition of the distribution and sale of child pornography, even though it did not meet the definition of obscenity under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), because of the actual harm suffered by participants in the making of the child pornography. 458 U.S. at 759-60, 102 S.Ct. 3348. Further explaining this distinction, the Court in Osborne allowed the prohibition of purely private possession of child pornography based on the fact that it helps facilitate criminal conduct, such as its use in soliciting minors to participate in sexual acts or whetting *779the appetites of pedophiles. 495 U.S. at 110-11, 110 S.Ct. 1691. However, the Court also reasoned that the actual harm suffered by participants was a key ingredient to the constitutionality of the prohibition. Id. Finally, in Free Speech Coalition, the Court reaffirmed the importance of this actual harm element by reasoning that the First Amendment is violated when speech which “records no crime and creates no victims by its production” is prohibited. 535 U.S. at 250, 122 S.Ct. 1389.8
The City did not receive any complaints from the children in the park, and it does not allege that anyone was affected by Doe’s presence there. Presumably, untold numbers of Lafayette residents wander the City’s parks every day, many of them potentially thinking offensive or objectionable thoughts. The City has not suggested that it monitors sex offenders’ presence in the City parks, and it could not cite any other example of an individual banned for mere presence in the park. The only factors that differentiate Doe from others are that the City was apprised of his thoughts while he was in the park and its knowledge of his past conduct.
The majority’s reliance on cases such as United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) and Arcara v. Cloud Books, Inc., 478 U.S. 697, 706, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986) is unhelpful. These cases focus on the distinction between mere conduct and expression and do not contradict longstanding principles regarding protection of thought. Cf. Free Speech Coalition, 535 U.S. at 253, 122 S.Ct. 1389 (“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”). Furthermore, the ban is not a content-neutral widely applied general ordinance, which incidentally affects a narrow form of expressive conduct, as was the case in O’Brien and Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Rather, the City seeks to prohibit Doe from entering its park facilities based on his thoughts, which, as stated above, are the bedrock of expression. Finally, this situation is distinguishable from Arcara. In Arcara, the Court found that the First Amendment did not preclude the closing of a bookstore when it was undisputed that solicitation of prostitution and other sexual acts were being performed by patrons in the store. See id. at 705, 106 S.Ct. 3172 (“[W]e underscored the fallacy of seeking to use the First Amendment as a cloak for obviously unlawful public sexual conduct. ..”). Therefore, he is not seeking to use the First Amendment to cloak unlaw*780ful conduct as no such unlawful conduct occurred.
B. The ban imposed on Doe is a punishment.
The majority characterizes the ban as a form of “civil exclusion,” majority opinion at n. 8, and brushes aside the argument that the ban is punitive in nature. However, it is clear from the record that the City seeks to punish Doe by banning him from public park facilities based on the City’s discovery of his fantasies.
When determining whether a governmental action constitutes a punishment, courts review such factors as:
[WJhether a sanction involves an affirmative restraint, how history has regarded it, whether it applies to behavior already a crime, the need for a finding of scienter, its relationship to a traditional .aim of punishment, the presence of a nonpunitive alternative purpose, and whether it is excessive in relation to that purpose.
Kansas v. Hendricks, 521 U.S. 346, 394, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (Breyer, J. dissenting) (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)) (finding that Kansas’s involuntary commitment of a mentally ill sexually dangerous offender is a civil rather than criminal sanction). Courts may also look to the State’s articulated purpose behind the measure. See Smith v. Doe, 538 U.S. 84, 93, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (characterizing the forced registration of sex offenders with the Department of Corrections as a civil sanction). For example, in In the Matter of Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), the Court found that “[djisbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer.” Similarly, in Specht v. Patterson, 386 U.S. 605, 608-09, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), the Court found that Colorado’s Sex Offender’s Act served to punish, “even though it is designed not so much as retribution as it is to keep individuals from inflicting future harm.” Both cases focus on the importance of fair notice and due process.
This ban unquestionably imposes an affirmative restraint on Doe’s liberty of movement. See Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (discussing the “freedom of movement” and citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), for the proposition that “[ljiberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”). In its attempt to characterize the City’s action as “nonpunitive,” the majority cites Smith for the proposition that the Constitution permits the “imposition of restrictive measures on sex offenders adjudged to be dangerous.” 538 U.S. at 93, 123 S.Ct. 1140. Majority opinion at n. 8. However, this quote fails to tell the full story. The Court went on to affirm the constitutionality of Alaska’s sex offender registry because it “does not restrain activities sex offenders may pursue,” id. at 100, 123 S.Ct. 1140, and the “dissemination of truthful information in furtherance of a legitimate governmental objective” is not punishment, id. at 98, 123 S.Ct. 1140. In contrast, Lafayette’s ban expressly prohibits Doe from entering any property deemed a part of the Lafayette Park system, which encompasses far more than its parks. Far from merely giving the public truthful information, this ban affirmatively restricts Doe’s freedom of movement. The City’s action is reminiscent of a partial banishment, which serves to expel Doe from certain portions of City property, see *781id. at 98, 123 S.Ct. 1140 (discussing banishment as a measure historically recognized as a punishment), and therefore is not akin to a duty to register.
Perhaps most telling is the ban’s relationship to the traditional aims of punishment. See Stephen B. Reed, The Demise of Ozzie and Harriet: Effective Punishment of Domestic Abusers, 17 New Eng. J. on Crim. & Civ. Confinement 337, 358-63 (1991) (discussing the traditional aims of punishment as deterrence, incapacitation, retribution, and rehabilitation). Specifically, the ban serves the twin goals of deterrence, which are to prevent an individual from repeating conduct as well as preventing similar acts by others. See id. at 358-59. News of Doe’s ban will surely serve to warn others in his position that they too may be restricted from entering portions of Lafayette if the City is apprised of their immoral thoughts. (The ban also serves to deter sex offenders from seeking treatment, but I will address that issue later.)
Further, the ban segregates Doe from the community and sets him apart from the general population. This form of segregation is similar to a condition of probation or supervised release. See Smith, 538 U.S. at 101, 123 S.Ct. 1140 (“Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction.”); Schave, 186 F.3d at 841 (preventing a convicted explosives dealer from “associating with organizations that, or members who, espouse violence or the supremacy of the white race”). Here, the City has set out a mandatory restriction and should Doe set foot in a City park facility he may be prosecuted for trespass. See United States v. Holm, 326 F.3d 872, 878 (2003) (“to the extent that the condition [of supervised release] is intended to be a total ban on Internet use, it sweeps more broadly and imposes a greater deprivation on Holm’s liberty than is necessary...”) (emphasis added).
The ban is also excessive in relation to its stated purpose as it contains no termination date. Critical to the analysis in Hendricks, was the Court’s determination that the petitioner would be confined only so long as he remained a danger to himself or to the public. 521 U.S. at 363, 117 S.Ct. 2072. The Court also noted that the duration of confinement was only “potentially” indefinite. Id. We have no such safeguards here. Doe has been banned for life, with no prospect of review or reconsideration by the City.
I recognize that Doe is not challenging the ban on procedural grounds, see n. 5, infra, however, the utter lack of pre-appli-cation procedure and post-application review is critical to the question of whether the ban is punitive. Both Hendricks and Smith relied on the imposition of sanctions after constitutionally appropriate procedures to protect against potential arbitrary government action. See Hendricks, 521 U.S. at 357, 117 S.Ct. 2072 (“We have consistently upheld such involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards.”); Smith, 538 U.S. at 84, 123 S.Ct. 1140 (registration only mandated for those previously convicted of a sexual offense). One could argue that these cases are inapposite based on this difference alone. The lack of such procedural safeguards, i.e., periodic review of the necessity of the ban, any procedure to test the accuracy of the information used by the City as its basis for action, and the lack of any connection to Doe’s ability to control his urges, serves to highlight the City’s actual motivation.
Finally, the fact that the anonymous caller contacted Doe’s former probation officer, who then in turn contacted the *782police department (criminal units) who then contacted the superintendent of parks and the city attorney further underscores the City’s intention to punish rather than civilly sanction. The resulting ban order is a judicially enforceable criminal decree which punished Doe for his thoughts. See Hill v. Colorado, 530 U.S. 703, 713, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting Madsen v. Women’s Health Center, 512 U.S. 753, 764, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (reasoning that a judicial decree poses a “greater risk of censorship and discriminatory application than do general ordinances.”)).
Having found that the ban is in fact punitive, the maxim cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) is particularly apt. This maxim serves as a cornerstone of the criminal justice system and has shaped many of the constitutional boundaries of criminal law.9 Perhaps the Victorian legal scholar James Fitzjames Stephen best explained this basic limit on government power: “If it were not so restricted it would be utterly intolerable; all mankind would be criminals, and most of their lives would be passed trying and punishing each other for offenses which could never be proved.” 1 James Fitzjames Stephen, A History of the Criminal Law of England 78 (1883).
C. A citizen may not be punished based on his status.
My conclusion is buttressed by a fundamental understanding of the bounds of punishable conduct. This axiomatic principle is illustrated by the distinction between punishment for a person’s status — impermissible under the Eighth Amendment— and sanctions levied for a person’s conduct. See Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). In Robinson, the Supreme Court struck down a California statute that made addiction to narcotics illegal. Id. at 666-67, 82 S.Ct. 1417. Because the statute required no illegal act, but criminalized mere status as a drug addict, it violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Id. at 667, 82 S.Ct. 1417. This distinction was further refined in Powell v. Texas, 392 U.S. 514, 532-34, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), where the Court explained that although status may not be criminalized, acts undertaken as a result of that status may be. There, the Court upheld Powell’s arrest for appearing drunk in public because the Texas law did not sanction Powell merely for his status as an alcoholic, but for his act of overimbibing in public. Id. at 535-36, 88 S.Ct. 2145. The Court rested its holding on the fact that Powell voluntarily committed sanctionable conduct: “The entire thrust of Robinson’s interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus.” Id. at 533, 88 S.Ct. 2145. See also United States v. Black, 116 F.3d 198, 200-01 (7th Cir.1997) (conviction for distribution, receipt, and possession of child pornography did not violate the Eighth Amendment despite *783plaintiffs contention of his status as a pedophile).
Doe’s going to the park does not rise to the level of an “action” of sufficient gravity to justify punishment. The error in punishing actions similar to Doe’s is more easily seen by way of analogies removed from the sensitive context of child molestation. 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, United States v. Pirovolos, 844 F.2d 415, 416 n. 1 (7th Cir.1988)) simply because she or he stood in the parking lot of a bank and thought about robbing it. It goes without saying that in this hypothetical the individual has not taken an action that could support punishment. Or, as a different example, punishing a drug addict who stands outside a dealer’s house craving a hit but successfully resists the urge to enter and purchase drugs would be offensive to our understanding of the bounds of the criminal law. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67-68, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (“The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not prohibited by the Constitution.”) Despite the City’s arguments to the contrary, both of these situations, analogous to the actions taken by Doe here, present clear examples of actions that do not reach a level of criminal culpability necessary to justify punishment.
As these illustrations suggest, Doe’s behavior may also be understood as the kind that does not come close to what is recognized as punishable under the theory of attempt. Under Indiana law, a person commits attempt when, acting with culpability necessary to commit the crime, he or she “engages in conduct that constitutes a substantial step toward commission of the crime.” Ind.Code § 35-41-5-1. Here, the most that can be said of Doe’s action is that he drove to the park and watched children. Even if it is assumed that Doe intended to molest children when he stood in the park, Doe’s mere presence in the park is not enough to constitute a “substantial step” towards an attempted sex offense. See State v. Kemp, 753 N.E.2d 47, 51 (Ind.Ct.App.2001) (affirming dismissal of attempted child molestation charge when defendant allegedly agreed to meet minor at restaurant parking lot, drove there, and brought condoms because conviction would result in “no limit on the reach of ‘attempt’ crimes”). In the same way that the individual with a history of robbing banks could not be charged with attempted bank robbery for standing across the street from the bank and thinking about robbing it, Doe may not be punished for merely thinking perverted thoughts about children.
Finally, Doe’s conduct is not akin to stalking, which, while perhaps motivated by thoughts, requires actual threatening conduct by the stalker. Stalking statutes typically require that a defendant: (1) knowingly or intentionally; (2) engage in a course of conduct involving continuous or repeated harassment; (3) that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened; and (4) actually causes that person to feel terrorized, frightened, intimidated, or threatened. See, e.g., Ind.Code § 35-45-10-1. Doe’s actions do not come close to criminal conduct punishable as stalking. He did not “continually” or “repeatedly” go to the public park; his ban order was based on a single visit. See Landis v. State, 704 N.E.2d 113, 113 (Ind.1998) (holding that “the crime of stalking by its nature necessitates proof of repeated or continuing acts”). Nor did Doe’s gaze or proximity cause any specific person to feel *784frightened or threatened; indeed, there is no evidence that anyone even noticed Doe’s presence. Frazier v. Delco Elecs. Corp., 263 F.3d 663, 668 (7th Cir.2001) (“The stalking victim who doesn’t know that she is being stalked is not in fear of being injured.”). Most importantly, Doe’s conduct — going to a public park with improper thoughts about children previously unknown to him- — did not harm any of the youths in the park, unlike the terror caused by actions criminalized as stalking.10
III. CONCLUSION
In the City’s haste to take action to protect its children, an admirable goal, both the majority and the City fail .to apprehend the possible secondary effects of this ban on the very safety it seeks to ensure. As a society grappling with the problem of pedophilia, see Crane, 534 U.S. at 414, 122 S.Ct. 867 (requiring some lack-of-control determination in the civil commitment of convicted pedophile), we have limited resources in our arsenal to address the possibility that someone like Doe may reoffend. Once released back into our society, a former sex offender must feel free to seek therapy and must be supported in his efforts to control his urges rather than penalized. Why deter former sex offenders from one of the few treatments available? The importance of therapy cannot be understated. See 51 Am.Jur.3d § 5 (“the group (led by the therapist) works on each member’s issues, such as denial, guilt, the offender’s own sexual trauma, or lack of empathy for the victim. This is a common technique for outpatient treatment of sex offenders (often a condition of probation) ... ”). The First Amendment’s concern with freedom of thought as a basis for the freedom of expression is highlighted by the facts of this case. The chilling effect of this ruling, i.e., that the communication of one’s thoughts may result in being banned from public spaces, is frightening. See Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir.2004) (“The Supreme Court has often noted that a realistic threat of arrest is enough to chill First Amendment rights.”). To oversimplify the issue, as one of location or logistics (i.e., the argument that Doe can simply think elsewhere) fails to address the problem of chilled speech, or here thought, that the First Amendment seeks to secure.
One cannot be a thinking member of society and not be acutely aware of the critical problem of sex offenses against children. The substance of Doe’s sexual fantasies about children are repugnant and deplorable: Doe ' himself admits that. But, of course, the fact that this court or the City of Lafayette finds Doe’s thoughts offensive does not limit the amount of First Amendment protection they are afforded. See Free Speech Coalition, 535 U.S. at 245, 122 S.Ct. 1389 (“It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities.”); Am. Booksellers Assoc. v. Hudnut, 771 F.2d 323, 327 (7th Cir.1985) (“Under the First Amendment the government must leave to the people the *785evaluation of ideas.”); Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.1978) (noting that the First Amendment covers protected speech even though it may be “repugnant to the core values held generally by residents of this country”). Despite our repudiation of the content of his thoughts, the City of Lafayette may not punish Doe for his thinking alone, for without protection from government intrusion into our thoughts, the freedoms guaranteed by the First Amendment are virtually meaningless.11
. The majority points out that Doe came in contact with two parks, but his intention in going to the first park, Columbian Park, is far from clear. Doe explained in his deposition that he lived a short distance from that park, and there is no evidence that he got out of his car or even stopped his car at the first park.
. Characterizing Doe's ability to control his urges as "marginal,” the majority seems to focus on Doe's statements concerning the logistical difficulty of approaching the teenagers on the baseball diamond. Majority opinion at 9. However, as the majority concedes and Doe articulates, he was able to control himself and leave the park. "While watching the *775children in Murdock Park in January of 2000 I certainly had sexual thoughts. However, I was not planning to act on my thoughts. I recognized that these were just unhealthy thoughts and I realized I needed to leave the park, which is what I did.” Doe Aff. ¶ 5.
. Doe’s psychologist explained that ”[i]n the first phase of recovery, our primary goal is to keep the patient as far away from any circumstance that might hold a trigger for him.” While, ”[i]n the second phase of recovery, we actually encourage the patient to begin to determine the boundaries of what's safe and what’s not safe.” Moisan-Thomas Dep. at 14-15.
. Doe was not on probation in January 2000 and was not even restricted from entering the park during his period of house arrest a decade earlier, thus, this analysis will not consider whether the restrictions imposed by the City might have been appropriate as a condition of release as part of the earlier criminal sentences. Cf. United States v. Schave, 186 F.3d 839, 841 (7th Cir.1999).
. Although I have grave concerns about the procedural due process infirmities in the method employed by the City to issue the ban, Doe does not challenge the order on this ground. I continue to be intrigued by Doe’s strategic decisión to forgo this straightforward claim.
. As the majorily points out, Doe also has not challenged the ban on' the grounds that it is unconstitutionally overbroad. I am also puzzled by the omission of this issue from Doe’s discussion.
. See also United States v. Reidel, 402 U.S. 351, 355-56, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971) (affirming that Stanley focused on the "freedom of mind and thought and on the privacy of one’s home’’); Wooley v. Maynard, 430 U.S. 705, 714-15, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (overturning requirement that license plate include phrase "Live Free or Die” under "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”); Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) ("The right of freedom of speech and press includes ... freedom of thought”); United States v. Schwimmer, 279 U.S. 644, 654-55, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting) ("[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought”); Steven J. Heyman, Spheres of Autonomy: Reforming the Content Neutrality Doctrine in First Amendment Jurisprudence, 10 Wm. & Mary Bill Rts. J. 647, 655 (2002) (“Although *777the First Amendment does not expressly mention freedom of thought, it is generally agreed that this freedom lies at the heart of what the amendment was intended to protect.”).
. The Court’s holding in Free Speech Coalition directly rejects the majority’s puzzling attempt to carve out categories of thought that should be "unprotected” because they might relate to obscenity or may "incite” unlawful action. Thought is protected regardless of its underlying content. See Reidel, 402 U.S. at 356, 91 S.Ct. 1410 (“[Reidel] has no complaints about governmental violations of his private thoughts or fantasies, but stands squarely on a claimed First Amendment right to do business in obscenity..."). Furthermore, the majority’s reliance on Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), for the proposition that Doe's thoughts are a form of self-incitement is equally puzzling. The cases that have referred to Brandenburg have all involved the incitement, or the attempted incitement to lawlessness of one group or individual by a different group or individual. See e.g. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001); Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982); Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).
. The proscription against penalizing for ideas alone has been recognized for centuries, see 4 William Blackstone, Commentaries on Laws of England, 21 (1765) ("[N]o temporal tribunal can search the heart or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know.”), and is reflected in modern codifications of the common law, see Model Penal Code and Commentaries, Comment to § 2.01 at 214-15 (1985) ("It is fundamental that a civilized society does not punish for thoughts alone.”).
. See, e.g., Garza v. State, 736 N.E.2d 323, 325 (Ind.Ct.App.2000) (despite several requests to be left alone, stalker repeatedly contacted, victim, sent her flowers with a message that began "hate, anger, bitterness, malice, venom, hellish prisons of our own making," and joined her health club); Johnson v. State, 721 N.E.2d 327, 330 (Ind.Ct.App.2000) (stalker threatened to kill former girlfriend, flattened her car tires, and came to her home on many occasions, including three separate times the night he was arrested); Waldon v. State, 684 N.E.2d 206, 207 (Ind.Ct.App.1997) (despite existence of restraining order, victim encountered stalker on at least six separate occasions near her dance studio within one-year period).
. The majority also addresses Doe’s argument that the ban order violates a constitutionally-protected freedom to loiter. Cf. City of Chicago v. Morales, 527 U.S. 41, 53, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality opinion) (remarking that the freedom to loiter for innocent purposes is protected by the Due Process Clause of the Fourteenth Amendment). As I find the ban order violative of Doe’s First Amendment right to freedom of thought, I find it unnecessary to reach this issue and express no view on the question.