The Journal of
Cognitive Liberties

This article is from Vol. 2, Issue No. 1 pages 7-20 (Spring/Summer 2000)
© 2000 CENTER FOR COGNITIVE LIBERTY AND ETHICS
All rights reserved worldwide.  ISSN: 1527-3946

-- Click here for part 1 of this essay--


 

 

 

On Cognitive Liberty (Part 2)
By Richard Glen Boire, Esq.

…without 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 today’s 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 individual’s fundamental right to control his or her own consciousness.

Entheogenic Oldspeak v. Drug War Newspeak

In George Orwell’s 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 "Don’t 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 government’s 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 didn’t 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…The spontaneity 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 Orwell’s vision of 1984, Newspeak’s 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 thought—that is a thought diverging from the principles of Ingsoc—should 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, today’s 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 person’s 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

Benjamin Cardozo, 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

Cognitive liberty 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 individual’s 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 Amendment—searching 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 Amendment.)12

The First Amendment’s 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 roots—via drug prohibitions, religious indoctrination, monopolizing media, or any number of methods—it need not even worry about controlling the expression of such thoughts. By prohibiting the very formation of mind states—by strangling the free mind itself—free expression is made meaningless.

Thus, in order to prevent the erosion of the First Amendment’s 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 individual—not the government—ought 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 one’s ideas), but also as a necessary precondition to those guaranteed freedoms
(i.e., a right to form one’s 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 drugs."17

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 ideas."18

As professor Laurence Tribe of Harvard Law School has cautioned:

In a society whose ‘whole constitutional heritage rebels at the thought of giving government the power to control men’s 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 one’s 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 government’s War on Unapproved Mental States, besides violating core principles of the First Amendment, also violates the very essence of the right to privacy.

 

Notes

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, 1973).

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 man’s 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, 1996), (3)32.

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 Amendment’s 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 one’s 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 one’s 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), 44(1) 1-103.

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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Richard Glen Boire, Esq. is the executive director of the Center for Cognitive Liberty & Ethics.

To read On Cognitive Liberty (Part 3), click here.