Earlier in the month, I promised some blog posts on how neuroscientific findings might raise questions of interest to legal scholars and practitioners who think about First Amendment issues and other constitutional questions. More weeks have passed than I anticipated. But I’d like to make good on that promise, beginning with a post that highlights, and briefly reflects upon, some intriguing thoughts on this subject that I read not too long ago by Rodney J.S. Deaton called “Neuroscience and the In Corpore-ted First Amendment,” a piece that I hope gets more attention in First Amendment scholarship. (It can be found at 4 First Amendment Law Review 181 (2006)).
First, some very quick background for the piece. In a famous 1969 First Amendment case (Stanley v. Georgia), the Supreme Court said: “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” What it has not had anything like a full opportunity to elaborate upon is what type of government action is ruled out by this constitutional ban on mind control. In fact, even where it has had opportunities of this kind, it has sometimes refused the invitation. In 2003, for example, it considered – in the case of Sell v. United States -- the question of whether (and, if so, when) a judge can order a defendant to take antipsychotic drugs in order to make him competent to stand trial. One might think that if anything might count as mind control it would be coerced use of psychotropic drugs. Although Sell’s lawyers, as well as those from the Center from Cognitive Liberty and Ethics, thus urged the Court to make it clear that government-compelled use of psychotropic drugs violated one’s freedom of thought under the First Amendment, the Court didn’t do so. In fact, it didn’t even mention the First Amendment or take any note of what it had said in Stanley about freedom of thought. Instead, as it had in a pair prior cases on forcible administration of antipsychotics (Washington v. Harper and Riggins v. Nevada), it found constitutional limits on coerced administration of drugs in a different constitutional source, our “substantive due process” right to privacy protections that it has elsewhere relied upon in analyzing patient’s right to refuse medical treatment. In the end, the Court said the government had failed to make the constitutional showing it needed to make to justify forcible administration of the drug to the defendant – more specifically it failed to show the coerced treatment was **all** of the following: (1) “medically appropriate” (2) “substantially unlikely to have side effects that may undermine the fairness of the trial” and (3) “taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.”
As Deaton notes, this dodging of the First Amendment issues relating to psychiatric intervention is probably only a temporary stop gap: “If the Justices' silence reflects a reluctance to lead First Amendment jurisprudence into th[e] realm of neuroscientific discourse, they may learn that this can only be avoided for so long.” But rather than simply taking the Court to task for refusing to find a freedom of thought violation, his analysis – if I understand it correctly – instead makes the somewhat counterintuitive argument that if anything constitutes a forced governmental invasion of, or intrusion into, the freedom of thought protected by the First Amendment, it’s not compelled use of antipsychotic drugs, but rather compelled encounters with therapy and certain other instances of speech.
Why the skepticism that forced use of antipsychotic drugs might often amount to the “mind control” barred by freedom of thought? Well, the fact that drugs alter mental processes doesn’t mean they control those processes – or allow those administering the drugs to exercise such control. As Deaton observes, summarizing some of the findings on these drugs’ effects: “Antipsychotic medications do not control the specific content of defendants' mental processes; they only alter the intensity with which defendants experience those mental processes.” So unless “freedom of thought” entails a “freedom of intense thought” there may not be a First Amendment claim here at all. Rather, perhaps the Court got it right in Sell (and in its prior forced antipsychotic medication cases) when it drew upon the constitutional “right of privacy” precedents that it has drawn on to limit the state’s intrusion into the body rather than its First Amendment jurisprudence on intrusion into the mind.
What might have a better claim to count as government control of the contents of one’s mental processes, he suggests, is not forced drug use, but forced therapy – and perhaps involuntary exposure to other government-imposed speech calculated to produce certain changes in what people believe. This probably cuts against many peoples’ likely intuitive reactions: Unlike drugs injected into your body, speech is something you can mull over, weigh in light of counterarguments, and ultimately reject. As many First Amendment cases emphasize, the effects of speech can often be undone by counterspeech. But this might not save government-imposed speech from sometimes counting as an infringement of freedom of thought. While it may be “easier to resist an idea rather than medicine,” that resistance might take a lot of work and may have little chance, in the end, of staving off transformations in the contents of one’s thoughts (that, as noted above, are not the kinds of changes arising from forced drug use). It is after all, not only forcibly administered drugs that cause biological changes, but thoughts and ideas constantly placed before you by a therapist – thoughts and ideas that are “physically encoded into literal neuronal changes that then are managed by the memory system of the brain, forcing neuronal mechanisms to process the words and ideas.” And, it is not only therapy that might impose involuntary transformations of thought in this way, but (as Deaton recognizes) also some government uses of neuromarketing research to promote a certain preference in citizens, or, as Susan Hurley has written about in a 2004 piece in Philosophical Studies that I hope to say more about in another post, violent films and video games (or for that matter, non-violent films and video games) that might “bypass processes of autonomous deliberation and control.”
One interesting feature of the freedom of thought analysis is that its conclusion in a sense reverses that of the analysis by Bruce J. Winick to which it is a response (another analysis of these issues very much worth reading, in 44 Univ. of Miami Law Review (1989), and in his book, The Right to Refuse Mental Health Treatment). (He also has a brief on-line piece on the issue here). Winick concludes that “the dramatic effects of the antipsychotic drugs on mental processes demand first amendment scrutiny” while behavioral therapy, by contrast does “not appear to present sufficiently serious effects on mental processes to trigger first amendment scrutiny.” For Deaton, by contrast, although forcible administration of antipsychotics may well be unconstitutional, this isn’t because they violate First Amendment freedom of thought, whereas compelled therapy is more likely to do so.
Ultimately, I’m not sure how convinced I am by all of this argument. Not every government action that leads to some alteration in our mental processes can count as a freedom of thought violation. That would treat as unconstitutional far too much regulation – since just about all regulation has some effect on our thoughts. But I’m not sure this means that a pharmacological alteration of our mental processes will only offend the First Amendment when it directly alters the contents of our thoughts rather than their intensity or other “content neutral” features of their character. In the law of freedom of speech, even content-neutral restrictions (for example, a ban on leafleting in public streets) can raise significant First Amendment concerns and my hunch is that the same should be true of freedom of thought. While the Stanley decision’s defense of freedom of thought sometimes speaks of the cardinal sin (under freedom of thought) as trying to alter “the moral content of a person's thoughts,” it elsewhere speaks more broadly of a bar on government restriction or manipulation of individuals’ “beliefs . . . thoughts . . . emotions. . . sensations.” As is clear from Adam’s article on memory-dampening drugs, it is also quite possible that, even if the antipsychotic drugs at issue in Sell are best described as content-neutral in their effects, at least some government-ordered use of memory-enhancing drugs in the future (or restrictions on use of memory-dampening drugs) will aim at controlling the contents of our thoughts – by assuring that we remember certain events or forget others.
I hope to say more about the other side of the argument – on speech that transforms our behavior in hard- or impossible-to-resist ways – in an additional post or two. In the meantime, I’d be happy to hear any thoughts you have on these issues (whether they originated with you or were furtively inserted into your minds by government agents).
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