Liberty (Part 2)
By Richard Glen Boire, Esq.
freedom of thought
there can be no free society.
U.S. Supreme Court Justice Felix Frankfurter1
An Introductory Note on
Banned Books and other Controlled Substances
As you read this sentence you are receiving
information. Words are carriers of thoughts, whether spoken from mouth to ear, digitized
and passed electronically, or downloaded into ink and passed on paper across time and
space. Because words are vehicles for thoughts, words can change your opinion, give you
new ideas, reform your worldview, or foment a revolution.
Attempts to control the written word date from at
least AD 325 when the Council of Nicaea ruled that Christ was 100 percent divine and
forbade the dissemination of contrary beliefs. Since the invention of the printing press
in 1452, governments have struggled to control the printed word. Presses were initially
licensed and registered. Only certain people were permitted to own or control a printing
press and only certain things could be printed or copied. (This was the origin of
todays copyright rules.) Works printed without prior authorization were gathered up
and destroyed, the authors and printers imprisoned.
Scholars disagree as to the exact date, but some
time around 1560, Pope Paul IV published the Index Librorum Prohibitorum a list of
forbidden books (i.e., controlled substances) enforced by the Roman government. When the Index
was (finally) abandoned in 1966, it listed over 4,000 forbidden books, including works
by such people as Galileo, Kant, Pascal, Spinoza and John Locke.2 The history
of censorship has been extensively recorded by others. My point is simply the obvious one
that efforts to prohibit heterodox texts and to make criminals out of those who
"manufactured" such texts, were not so much interested in controlling ink
patterns on paper, as in controlling the ideas encoded in printed words.
I submit that in the same way, the so-called
"war on drugs" is not a war on pills, powder, plants, and potions, it is war on
mental states a war on consciousness itself how much, what sort we are
permitted to experience, and who gets to control it. More than an unintentional misnomer,
the government-termed "war on drugs" is a strategic decoy label; a
slight-of-hand move by the government to redirect attention away from what lies at ground
zero of the war each individuals fundamental right to control his or her own
Entheogenic Oldspeak v. Drug War Newspeak
In George Orwells dystopian novel Nineteen
Eighty-Four, the Oceania government diligently worked to establish
"Newspeak" a carefully crafted language designed by the government for the
purpose of making unapproved "modes of thought impossible."3 Prior to
Newspeak, the people of Oceania communicated with "Oldspeak," an autonomous
natural language capable of expressing nuanced emotions and multiple points of view. By
controlling language through the imposition of Newspeak by "eliminating
undesirable words" the government of Oceania was able to control and, in some
cases, completely extinguish certain thoughts. As a character in Nineteen Eighty-Four explained
to Winston Smith "Dont you see that the whole aim of Newspeak is to narrow the
range of thought?
Every year fewer and fewer words, and the range of consciousness
always a little smaller."4 Those people raised with Newspeak, having never
known the wider-range of Oldspeak, might fail to notice, indeed, might be unable to even
perceive, that the Government was limiting consciousness.
In 1970, just four years after the Catholic
Church finally abandoned the Index Librorum Prohibitorum, the United States
government produced its own index of forbidden thought catalysts: the federal schedule of
controlled substances. Included on the initial list of Schedule I substances were
seventeen substances denoted as "hallucinogens," and declared to have "a
high potential for abuse," "no currently accepted medical use" in the USA,
and "a lack of accepted safety" even under medical supervision. Among the list
of outlawed "hallucinogens" were psilocybin and psilocin, the active principles
of Psilocybe mushrooms; dimethyltryptamine (DMT), the active principle in ayahuasca
and many visionary snuffs; ibogaine, mescaline, peyote, and LSD.5 The
experience elicited by these substances in their chemical or natural plant forms is the par
excellence of "Oldspeak"a cognitive modality dating from pre-history.
Archeological evidence suggests that humans have
communed with visionary plants and potions for thousands of years. Peyote, for example,
has been used for over 10,000 years. Lysergic acid diethylamide (LSD) was created by Dr.
Albert Hofmann, a chemist employed by Sandoz Laboratories in Basel, Switzerland. In 1938,
Dr. Hofmann synthesized LSD from a fungus commonly found in rye seeds. Its affect on
consciousness remained undiscovered until April 16, 1943, when Dr. Hofmann accidentally
ingested a minute amount of the substance and experienced a strange inebriation in which
"the external world became changed as in a dream." Several years later, Hofmann
discovered that the chemical structure of LSD is nearly identical to that of the sacred
entheogen ololiuhqui, prepared from morning glory seeds and used ritually by the
Aztecs for thousands of years.
Mushrooms, of the genus Psilocybe, were
used to produce visionary states at least as early as 4000 B.C. The Psilocybe mushroom
was used in religious ceremonies long before the Aztec civilization. It was named teonanácatl,
meaning "sacred mushroom." In 1957, working with mushrooms obtained by R. Gordon
Wasson from the now famous curandera Maria Sabina, Dr. Hofmann isolated and later
synthesized two active substances derived from the Psilocybe mushroom. He named
these substances psilocybin and psilocin. In 1962, Dr. Hofmann traveled to Mexico and met
with Maria Sabina. During a night ceremony, she ingested 30 milligrams of the synthetic
psilocybin and later said the effect was indistinguishable from that elicited with the
sacred mushrooms themselves.
Another substance placed on the governments
1970 list of criminalized "hallucinogens" was N,N-dimethyltryptamine
(DMT). This substance was first synthesized in 1931, but its entheogenic properties were
not discovered until 1956. It was subsequently learned that DMT is the principal active
ingredient in numerous snuffs and brews long-used by various South American Indians during
religious ceremonies. The DMT containing plant Psychotria viridis is a well-known
admixture to the entheogenic brew known as ayahuasca or yajé, which archeological
evidence suggests dates back as many as five thousand years.6
Some who ingest visionary plants believe that the
plants talk to them and open up channels of communication with animals and other entities.
Mazatec eaters of Psilocybe mushrooms, for example, are adamant that the mushrooms
speak to them:
The Mazatecs say that the mushrooms
speak. If you ask a shaman where his imagery comes from, he is likely to reply: "I
didnt say it, the mushrooms did."
he who eats these mushrooms, if he is a
man of language, becomes endowed with an inspired capacity to speak
they liberate is not only perceptual, but linguistic, the spontaneity of speech, of
fervent, lucid discourse, of the logos in activity. For the shaman it is as if existence
were uttering itself through him
words are materializations of consciousness;
language is a privileged vehicle of our relation to reality.7
Just as Newspeak was intended to make certain
Old(speak) thoughts literally unthinkable, so the War on Entheogens makes certain sorts of
cognition and awareness all but inaccessible. Religious scholar Peter Lamborn Wilson has
aptly framed the War on Entheogens as a battle over the nature of thought itself:
The War on Drugs is a war on
cognition itself, about thought itself as the human condition. Is thought this dualist
Cartesian reason? Or is cognition this mysterious, complex, organic, magical thing with
little mushroom elves dancing around. Which is it to be?8
In Orwells vision of 1984,
Newspeaks power to control and limit thought depended, in part, upon the passing of
time and the birth of new generations that never knew Oldspeak. As explained by Orwell in
the Appendix to Nineteen Eighty-Four, "It was intended that when Newspeak had
been adopted once and for all and Oldspeak forgotten, a heretical thoughtthat is a
thought diverging from the principles of Ingsocshould be literally unthinkable, at
least so far as thought is dependant on words."9
Just as Newspeak depended in part upon time
eradicating knowledge of Oldspeak, todays War on Entheogens is sustainable, in part,
because the current generation of young adults (those 21 - 30 years old) have never known
a time when most entheogens were not illicit. Those who have never experienced the
mental states that are now prohibited do not realize what the laws are denying them. It is
as if nothing is being taken away, at least nothing noticeable, nothing that is missed. As
pointed out by the authors of a law review article on how mandatory schooling raises
issues of mass-consciousness control: "[t]he more the government regulates formation
of beliefs so as to interfere with personal consciousness,
the fewer people can
conceive dissenting ideas or perceive contradictions between self-interest and government
sustained ideological orthodoxy." 10
Because of the personal
experiential nature of entheogen-elicited cognition, only those who have been initiated
into the modern day Mysteries those who have tasted the forbidden fruit from the
visionary plants of knowledge and have not fallen victim to the stigmatizing psycho-impact
of "being a drug user" are acutely aware of the gravity of what is being
prohibited: powerful modalities for thinking, perceiving, and experiencing.
The very best
argument for the potential value of entheogen-elicited mind states is in the entheogenic
experience itself; an experience that has, in almost every case, been outlawed. That is
the dilemma of entheogen policy reformation. The advocate for entheogenic consciousness is
left in an even worse position than the proverbial sighted man who must describe colors to
a blind person. With regard to entheogen policy, the position is worse because the
"blind" are in power and have declared it a crime to see colors.
Left with the impossible task of saying the
unsayable, of describing the indescribable, those who have tasted the forbidden fruit must
plead their case on the fundamental philosophical and political level of what it means to
be truly free. They must state their appeal on the ground that, with respect to the
inner-workings of each persons mind, the values of tolerance and respect are far
weightier and far more conducive to the basic principles of democracy, than is the
chillingly named "zero-tolerance" policy that is currently in vogue. This brings
us, once again, to cognitive liberty as an essential substrate of freedom.
Free Thought and the First Amendment
one of the most respected and influential American legal scholars of the last century and
a former Justice of the U.S. Supreme Court, affirmed cognitive liberty as central to most
every other freedom:
...freedom of thought
one may say
is the matrix, the
indispensable condition, of nearly every other form of freedom. With rare aberrations a
pervasive recognition of that truth can be traced in our history, political and legal. 11
jurisprudence must begin, then, with an effort to distill the legal principles that
support some of our most cherished and well-established freedoms, and then, over time,
crystallize these principles into the foundation for a coherent legal scheme governing
issues related to an individuals right to control his or her own consciousness.
Given the importance of the First Amendment to
U.S. and even international law, we will begin by examining how courts have construed the
First Amendmentsearching for evidence that the right of each person to autonomy over
his or her own mind and thought processes is central to First Amendment jurisprudence.
Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances. (The First
The First Amendments guarantees were designed
to bar the government from controlling or prohibiting the dissemination of unpopular or
dissenting ideas. Central to all five guarantees is the acknowledgement that people must
be treated by the government as ends not means; each person free to develop his or her
mind and own belief system, and encouraged to express his or her thoughts in the so-called
"marketplace of ideas."13 As U.S. Supreme Court Justice Felix
Frankfurter emphasized in 1949, the freedom of expression guaranteed by the First
Amendment guards against "thought becom[ing] checked and atrophied."14
Free speech, free exercise, free association, a
free press and the right to assemble, are all moot if the thought that underlies these
actions has already been constrained by the government. If the government is permitted to
prohibit the experiencing of certain thought processes, or otherwise manipulate
consciousness at its very rootsvia drug prohibitions, religious indoctrination,
monopolizing media, or any number of methodsit need not even worry about controlling
the expression of such thoughts. By prohibiting the very formation of mind statesby
strangling the free mind itselffree expression is made meaningless.
Thus, in order to prevent the erosion of the First
Amendments protection of expression, the Amendment must also provide at least as
strong a protection for the underlying consciousness that forms the ideas that are later
expressed. Indeed, the First Amendment was infused with the principle that each
individualnot the governmentought to have control over his or her own mind, to
think what he or she wants to think, and to freely form and express opinions and beliefs
based on all the information at his or her disposal. The First Amendment, in other words,
embraces cognitive liberty not simply as the desired outcome of the articulated guarantees
(i.e., a right to express ones ideas), but also as a necessary precondition to those
(i.e., a right to form ones own ideas).
Mother May I Control My Own Consciousness?
In (the apropos year of) 1984, the Tenth Circuit
Court of Appeal issued an opinion in a case involving a man who was involuntarily drugged
with the "antipsychotic drug" thorazine while he was being held for trial on
murder charges.15 The threshold issue was whether pretrial detainees have a
fundamental right to refuse treatment with anti-psychotic drugs. To answer this question,
the Tenth Circuit analogized to a 1982 case in which the U.S. Supreme Court held that
"[l]iberty from bodily restraint always has been recognized as the core of the
liberty protected by the Due Process Clause from arbitrary governmental
action."16 The Tenth Circuit reasoned that if freedom from bodily
restraints is a fundamental right, then individuals must also have a liberty interest
in freedom from "mental restraint of the kind potentially imposed by antipsychotic
Thus, the Tenth Circuit found that freedom from
government imposed mental restraints was just as fundamental as freedom from government
imposed physical restraints both were protected by the Due Process Clause.
Furthermore, the Tenth Circuit found that the First Amendment was also implicated when the
government attempts to involuntarily psycho-medicate a person awaiting trial. In
unequivocal language, the Tenth Circuit explained "[t]he First Amendment protects
communication of ideas, which itself implies protection of the capacity to produce
As professor Laurence Tribe of Harvard Law School
In a society whose whole
constitutional heritage rebels at the thought of giving government the power to control
mens own minds, the governing institutions, and especially the courts, must
not only reject direct attempts to exercise forbidden domination over mental processes;
they must strictly examine as well oblique intrusions likely to produce or designed to
produce, the same result."19
Prohibiting an otherwise law-abiding person from
using entheogens is more than merely an "oblique intrusion" on the right to
control ones own mental processes, or a slight trespass on the "protected
capacity to produce ideas" it is a direct frontal attack. Under the recently
released National Drug Control Strategy 2000, the federal government will spend
just shy of $20 billion ($20,000,000,000) on an all out attempt to keep people from
evoking alternative states of consciousness by the use of controlled substances.20
As I will show in the next installment of this
essay, the governments War on Unapproved Mental States, besides violating core
principles of the First Amendment, also violates the very essence of the right to privacy.
1 Kovacs v. Cooper (1949) 336 U.S. 77, 97
(concurring opinion of J. Frankfurter)
2 For a fascinating survey of suppressed literature,
see the multi-volume set Banned Books, published by Facts on File, which covers
literature suppressed on religious, social, sexual, and political grounds.
3 George Orwell, Nineteen
Eighty-Four (New York: Harcourt, Brace & Co., Inc., 1949), Appendix "The
Principles of Newspeak" 246.
4 Ibid., 46.
5 The substances
initially listed in Schedule I as "hallucinogenic substances" were: (1)
3,4-methylenedioxy amphetamine; (2) 5-methoxy-3,4-methylenedioxy amphetamine; (3)
3,4,5-trimethoxy amphetamine; (4) Bufotenine; (5) Diethyltryptamine; (6)
Dimethyltryptamine; (7) 4-methyl-2,5-dimethoxyamphetamine; (8) Ibogaine; (9) Lysergic acid
diethylamide; (10) Marihuana; (11) Mescaline; (12) Peyote; (13) N-ethyl-3-piperidyl
nezilate; (14) N-methyl-3-piperidyl benzilate; (15) Psilocybin; (16) Psilocyn; (17)
Tetrahydrocannabinols. (PL 91-513, Oct. 27, 1970; 21 U.S.C. sec. 812, subd. (b) (1970).)
The list of Schedule I "hallucinogenic
substances" now numbers 31 items. (21 CFR § 1308.11(d) (April 1999)).
6 For more on the
historic and pre-historic use of entheogens, see Peter Furst, Hallucinogens and Culture
(Novato, CA: Chandler & Sharp Publishers, Inc., 1976); R.E. Schultes, and A. Hofmann, The
Botany and Chemistry of Hallucinogenic Plants (Springfield, IL: Charles C. Thomas,
7 H. Munn, in, Hallucinogens
and Shamanism, ed. M. Harner (New York: Oxford University Press, 1973), 88-89.
Philosopher and ethnobotanist Terence McKenna
suggested that early mans ingestion of visionary plants may have been the very
catalyst that led to the sudden expansion of human brain size between three and six
million years ago, and the event which spawned the subsequent emergence of language
itself. (See Terence McKenna, Food of the Gods (New York: Bantam Books, 1993), 25.)
8 Peter Lamborn
Wilson, "Neurospace," in 21-C (Newark, NJ: Gordon and Breach Publishers,
9 George Orwell, Nineteen
Eighty Four, supra, Appendix: "The Principles of Newspeak," 246.
10 Stephen Arons and
Charles Lawrence, "The Manipulation of Consciousness: A First Amendment Critique of
Schooling" in 15(2) Harvard Civil Rights-Civil Liberties Law Review 309-361
(Fall 1980), 312.
11 Palko v.
Connecticut (1937) 302 U.S. 319, 326-327.
12 Although the First
Amendment only mentions "Congress," the U.S. Supreme Court has held that the
Fourteenth Amendments Due Process Clause incorporates the First Amendment guarantees
and thus makes those guarantees applicable to State governments as well as Congress. (See Gitlow
v. New York (1925) 268 U.S. 652, 666; Board of Education v. Pico (1981) 457
U.S. 853, 855, fn. 1.)
13 The concept of a
laissez faire marketplace where ideas compete for buyers appears to date from 1919 when
U.S. Supreme Court Justice Holmes wrote in Abrams v. United States (1919) 250 U.S.
616, 630 "[T]he ultimate good desired is better reached by free trade in ideas ...
the best test of truth is the power of the thought to get itself accepted in the
competition of the market") (Holmes, J., dissenting).
Using a "marketplace" analogy for the
interaction and acceptance or rejection of ideas is problematic.
Using market mechanisms to
determine the logic or merit of ideas reduces ideas to commodities. When this happens the
circulation of ideas is determined by their sales profiles. The consumer is
described as voting for the products of the Consciousness Industry [a term coined
by Hans Magnus Enzensberger in his 1974 collection of essays of the same name] with his or
her dollars (consumer sovereignty). Such metaphors suggest democracy and freedom of
choice. They deflect attention away from the tightly controlled decision-making process
that actually determine what ideas will gain entry into the commodity system. That is,
they render the control system of the capitalistic consciousness industry invisible and
thereby permit subterranean censorship based upon both market and political
considerations. In sum, they permit elites to rule but preserve the semiotics of
democracy. (Sue Curry Jansen, Censorship: The Knot that Binds Power and Knowledge
(New York; Oxford: Oxford University Press, 1988), 134.)
14 Kovacs v.
Cooper, supra, at p. 95
15 Bee v. Greaves (10th
Cir. 1984) 744 F.2d 1387, 1393 , cert. denied, (1985) 469 U.S. 1214 .
16 Youngberg v.
Romeo (1982) 457 U.S. 307, 316.
17 Bee v. Greaves,
supra, at p. 1393.
18 Ibid., 1393-1394;
Accord, Rogers v. Okin (D.Mass. 1979) 478 F.Supp. 1342, 1366-1367. Other courts
have held that inmates in mental hospitals have a constitutional "liberty
interest" in maintaining the autonomy over their own minds in the face of doctors who
want to involuntarily medicate them. (See, e.g., United States v. Charters (4th
Cir.1988) (en banc) 863 F.2d 302, 305 (antipsychotic drugs intrude sufficiently upon
"bodily security" to implicate a "protectable liberty interest"); And,
still other courts have held that there is a constitutional "privacy protection"
that encompasses "the right to protect ones mental processes from governmental
interference." See, e.g., Rennie v. Klein (D.N.J. 1978) 462 F. Supp. 1131,
1144 ("the right of privacy is broad enough to include the right to protect
ones mental processes from governmental interference").
For a comprehensive survey of forced mental
treatment cases, see Bruce J. Winick, "The Right to Refuse Mental Health Treatment: A
First Amendment Perspective," University of Miami Law Review (September 1989),
19 L. Tribe, American
Constitutional Law Sec. 15-5, at p. 889 (1978) (quoting Stanley v. Georgia (1969)
394 U.S. 557, 565.)
20 The National
Drug Control Strategy 2000 can be read online via the CCLE's Drug
Law Library at www.cognitiveliberty.org/DLL/[Accessed: May 17, 2000.]
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