The CCLE submits that the court of appeals
mischaracterized the fundamental right at issue in this case, and as a
result, erred by applying an inappropriately low standard of review.
The fundamental right to control one’s own intellect
and mental processes is protected by the First Amendment, and is eviscerated
if courts permit the government to forcibly drug citizens. If government
agents, with the concurrence of the courts, can constitutionally order the
forcible manipulation of Dr. Sell’s mind in order that he may stand trial,
then any accused defendant, who poses no danger to himself or others, is
also at jeopardy of losing his or her First Amendment right to freedom of
thought.
To be sure that our argument is correctly understood,
the CCLE does not propose that the state cannot regulate the behavior of
individuals, including the acts of individuals who are incoherent or who
spit on, or otherwise assault, judges. We maintain that the state cannot,
consistent with the First Amendment of the Constitution, forcibly manipulate
the mental states of individuals.
In declaring that the state may forcibly inject a nondangerous citizen
with mind-altering drugs in order to make him “competent to stand trial,”
the Eighth Circuit’s decision goes far beyond any holding of this Court
concerning the right of the state to directly intrude into the mind of a
citizen. The sweeping breadth of the Eighth Circuit’s
decision places freedom of thought in dire jeopardy,
calling into question not only the Sixth Amendment right to a fair trial,
but the very foundation of the First Amendment, including basic notions of
individual freedom upon which this country was founded.
The CCLE submits that more than the defendant’s
liberty interest in bodily integrity is at stake in this case. Here, the
state seeks to forcibly invade a nondangerous pretrial detainee’s body and
manipulate his brain chemistry for the purpose of changing how he thinks.2
In other words, this case combines the issue of bodily integrity with the
issue of freedom of thought, and thus raises what the CCLE terms a
“cognitive liberty” issue.
While the Eighth Circuit acknowledged that Dr. Sell
has a “significant liberty interest in refusing anti-psychotic medication”
(United States v. Sell, 282 F.3d 560, 568 (2002)), the court grossly
undervalued the individual interest at stake in this case. The right to
freedom of thought is far more than “significant;” it is situated at the
very core of what it means to be a free person in a civilized society, and
is a fundamental right protected by the First Amendment.
The First Amendment to the United States Constitution,
which Professor Laurence Tribe has called “the Constitution’s most majestic
guarantee,”3 provides:
This Court has noted that while “[t]he First Amendment
literally forbids the abridgment only of “speech,” … we have long recognized
that its protection does not end at the spoken or written word.” (Texas v.
Johnson, 491 U.S. 397, 404 (1989); see also, Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 604 (1982) (“[W]e have long eschewed any ‘narrow,
literal conception’ of the [First] Amendment’s terms, …for the framers were
concerned with broad principles….”).
This Court has repeatedly observed that there are
derivative and corollary rights that are essential to effectuate the
purposes of the First Amendment, or which are inherent in the rights
expressly enumerated in the Amendment. For example, in Lamont v. Postmaster
Gen., 381 US 301, 308 (1965), Justice Brennan, in his concurring opinion
explained:
It is true that the First Amendment contains no
specific guarantee of access to publications. However, the protection of
the Bill of Rights goes beyond the specific guarantees to protect from
congressional abridgement those equally fundamental personal rights
necessary to make the express guarantees fully meaningful.
Likewise, in Globe, supra, this Court
observed that “[t]he First Amendment is thus broad enough to encompass those
rights that, while not unambiguously enumerated in the very terms of the
Amendment, are nonetheless necessary to the enjoyment of other First
Amendment rights” (Globe, supra, 457 U.S. 596, 604). In 1982, this Court
employed this reasoning to recognize a “right to receive information and
ideas,” locating the right as “an inherent corollary of the right of free
speech and press” guaranteed by the First Amendment (Board of Educ. v. Pico,
457 U.S. 853, 867 (1982) (plurality opinion)).
Freedom of thought, while not expressly guaranteed by
the First Amendment is one of the equally fundamental rights necessary to
make the express guarantees meaningful. As Justice Benjamin Cardozo
extolled, “...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” (Palko v. Connecticut, 302 U.S. 319, 326-327
(1937)).
Repeatedly, this Court has recognized that freedom of
thought is one of the most elementary and important rights inherent in the
First Amendment.
In West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943), this Court invalidated a school requirement that
compelled a flag salute on the ground that it was an unconstitutional
invasion of “the sphere of intellect and spirit which it is the purpose of
the First Amendment to our Constitution to reserve from official control”
(Id. at 642). The First Amendment, declared this Court, gives a
constitutional preference for “individual freedom of mind” over “officially
disciplined uniformity for which history indicates a disappointing and
disastrous end” (Id. at 637). At the center of our American freedom, is the
“freedom to be intellectually and spiritually diverse” (Id. at 641). “We can
have intellectual individualism and the rich cultural diversities that we
owe to exceptional minds,” this Court explained, “only at the price of
occasional eccentricity and abnormal attitudes” (Id. at 641-42).
This principle, that freedom of thought is central to
the First Amendment and protected thereby, has guided other important
decisions of this Court. In Wooley v. Maynard, 430 U.S. 705 (1977), the
Court invalidated a New Hampshire statute that required all noncommercial
vehicle license plates to bear the state motto “Live Free or Die,” finding
the statute to be inconsistent with “the right of freedom of thought
protected by the First Amendment” (Id. at 714).
In Abood v. Detroit Board of Education, 431 U.S. 209
(1977), this Court invalidated a state statute forcing public school
teachers to contribute money to a union that advanced political views. “[A]t
the heart of the First Amendment,” noted this Court, “is the notion that an
individual should be free to believe as he will, and that in a free society
one’s beliefs should be shaped by his mind and his conscience rather than
coerced by the State” (Id. at 234-235). This Court emphasized, “freedom of
belief is no incidental or secondary aspect of the First Amendment’s
protections” (Id. at 235).
In the instant case, the government is seeking to
directly manipulate and modify Dr. Sell’s thoughts and thought process by
forcing him to take mind-altering “antipsychotic” drugs. This case thus
concerns what the CCLE terms a “cognitive liberty” interest, an interest
forged by the union of Dr. Sell’s liberty interest in bodily integrity with
his First Amendment right to freedom of thought. If “at the heart of the
First Amendment is the notion that in a free society one’s beliefs should be
shaped by his mind and his conscience rather than coerced by the State” (Abood,
supra, at 234-235), then there can be no doubt that the government infringes
on the First Amendment when it seeks to change Dr. Sell’s thinking by
forcibly changing his brain chemistry.
By altering a person’s mind with the forced administration of drugs,
the government commits an act of cognitive censorship and mental
manipulation, an action surely more disfavored under the First Amendment
than even the censorship of speech. A government that is permitted to
manipulate a citizen’s consciousness at its very roots—by forcing a person
to take a mind-altering drug—need not censor speech, because it could
prevent the ideas from ever occurring in the mind of the speaker. Chemical
manipulation of the mind is, therefore, the ultimate prior restraint on
speech. 4
By forcing Dr. Sell to take a mind-altering drug
against his will, the government is commandeering Dr. Sell’s mind, and
forcibly changing his very ability to formulate particular thoughts. By
directly manipulating the manner in which Dr. Sell’s brain processes
information and formulates ideas, the government ipso facto manipulates and
alters both the form and content of Dr. Sell’s subsequent expression and
thus renders the First Amendment’s free speech guarantee meaningless. “The
guarantee of free expression,” notes Professor Tribe, “is inextricably
linked to the protection and preservation of open and unfettered mental
activity…” (Laurence Tribe, Rights of Privacy and Personhood, American
Constitutional Law, Sec. 15-7, at 1322 (2nd ed. 1988)).5
In Stanley v. Georgia, 394 U.S. 557 (1969), this Court
struck down a Georgia law that banned the private possession of obscene
material for personal use, finding the law “wholly inconsistent with the
philosophy of the First Amendment” (Id. at 565-66). “Our whole
constitutional heritage,” explained this Court, “rebels at the thought of
giving government the power to control men’s minds” (Id. at 565).
Justice Harlan, concurring in United States v. Reidel,
402 U.S. 351 (1971), characterized the Constitutional right protected in
Stanley as “the First Amendment right of the individual to be free from
governmental programs of thought control, however such programs might be
justified in terms of permissible state objectives,” and as the “freedom
from governmental manipulation of the content of a man’s mind…” (Id. at 359
) Harlan J., concurring).
It is impossible to reconcile a First Amendment
aversion to “giving government the power to control men’s minds” (Stanley,
supra) with the actions intended by the government in the instant case.
Indeed, it is difficult to imagine a governmental action more offensive to
the First Amendment’s protection of freedom of thought, than the government
forcibly injecting a nondangerous citizen with a mind-altering drug. If, as
Justice Harlan explained in Reidel, there is a “First Amendment right of the
individual to be free from governmental programs of thought control,” then
that right is clearly at stake in this case.
The Eighth Circuit’s decision failed to recognize that
the government’s action in the instant case infringes on Dr. Sell’s First
Amendment right to freedom of thought. Forcibly injecting Dr. Sell with a
mind-altering drug infringes on one of the most primary rights imaginable:
the right to cognitive liberty and autonomy. This Court should grant the
petition in order to articulate the fundamental First Amendment nature of
Dr. Sell’s right to cognitive liberty.
Vigorous protection of cognitive liberty is particularly important
today, as pharmaceutical companies increasingly develop and market new drugs
aimed at modulating consciousness by modifying brain chemistry. The sale of
Prozac™ and similar antidepressant drugs is currently one of the most
profitable segments of the pharmaceutical drug industry. According to IMS
Health, a fifty-year-old company specializing in pharmaceutical market
intelligence and analyses, “antidepressants, the #3-ranked therapy class
worldwide, experienced 18 percent sales growth in 2000, to $13.4 billion or
4.2 percent of all audited global pharmaceutical sales.”6 Sales
of “anti-psychotic” drugs are currently the eighth largest therapy class of
drugs with worldwide sales of $6 billion in the year 2000, a 22 percent
increase in sales over the previous year.7
While the development of such drugs is to be applauded
for their potential to aid millions of suffering Americans who voluntarily
take them, the instant case raises the chillingly dark prospect of the
government forcibly employing these new drugs to chemically alter the way
that certain people think.8
The instant case thus raises significant theoretical
constitutional issues with enormous practical implications. In the context
of the ever-increasing ability to pharmacologically intervene in the minds
of Americans, this case presents the Court with the timely and extremely
important opportunity to articulate some unequivocal rules that respect
freedom of thought and cognitive liberty. The CCLE respectfully urges this
Court to grant the petition for certiorari.
Government Action that Substantially
Infringes Upon the First Amendment
Right to Cognitive Liberty Should, at
the Very Least, be Subject to Strict Scrutiny.
Forcing a nondangerous pretrial detainee to take a
mind-altering drug violates the First Amendment right to cognitive liberty.
The forcible administration of so-called “anti-psychotic” medication is not
an effort to control a person’s behavior, with merely an incidental effect
on the person’s thinking. It is an effort aimed directly at changing the
person’s mind and mental processes, by forcibly manipulating his or her
brain chemistry. Such a government invasion of bodily integrity—one aimed at
directly manipulating the person’s thoughts and thinking processes—infringes
on the First Amendment and must be judged under no less a standard than
strict scrutiny.
In reaching its holding that Dr. Sell may be forcibly
injected with mind-altering drugs, the court of appeal rejected application
of the strict scrutiny standard of review (Sell, supra, 283 F.3d at p. 568).
In applying a lesser standard of review, the court of appeals misread this
Court’s decision in United States v. Riggins, 504 U.S. 127 (1992), and,
ultimately, failed to apply the appropriately strict standard for judging a
First Amendment cognitive liberty infringement.
The court of appeals’ reliance on Riggins, for the
proposition that strict scrutiny is not demanded in the instant case, is
misplaced. In Riggins, this Court expressly refused to determine the
standard of review to be applied when a nondangerous pre-trial detainee is
force-drugged by the government. “We have no occasion,” wrote this Court,
“to prescribe such substantive standards…” (Riggins, supra, 504 U.S. at p.
136).
The instant case provides the Court with an opportunity
to articulate the fundamental First Amendment nature of the right to
cognitive liberty, and the relationship of this right to a government effort
to forcibly modify the brain chemistry of a nondangerous pretrial detainee.
The instant case is striking for the factual finding that Dr. Sell does not
pose a danger to himself or to others (Sell, supra, 283 F.3d at p. 565)
(“Upon review, we agree that the evidence does not support a finding that
Sell posed a danger to himself or others at the Medical Center”). The sole
government interest offered as justification for forcibly drugging Dr. Sell
is the state’s “interest in bringing a defendant to trial” (Sell, supra, 283
F.3d at p. 568).
Given that the forced-drugging of Dr. Sell is a direct effort to alter
the content and form of his thoughts—the essential substrate for free speech
and expression—the correct standard is strict scrutiny, at the very least
See N.A.A.C.P. v. Button, 371 U.S. 415, 438 (1963) (“The decisions of this
Court have consistently held that only a compelling state interest…can
justify limiting First Amendment freedoms”); United States v. Brandon, 158
F.3d 947 (6th Cir. 1998) (“to medicate a
non-dangerous pretrial detainee in order to render him competent to stand
trial…the government must satisfy strict scrutiny review…”).
Applying a lesser standard, as did the Eighth Circuit,
was erroneous, and places in substantial jeopardy the fundamental right of
all Americans to freedom of thought and cognitive liberty. This Court should
grant the petition in order to resolve the current standard of review in
light of the fundamental First Amendment right at stake.
CONCLUSION
For the foregoing reasons, amicus curiae respectfully
urges the Court to grant the petition for certiorari.
Respectfully submitted,
Richard Glen Boire
Counsel of Record
Center for Cognitive Liberty & Ethics
August 20, 2002
