Thoughts are free and are subject to no rule.

Encroachments on cognitive liberty can take various forms. New technologies such as biogenetic modification, human-computer interfacing, brain-scanning, nanotechnology, neural-networking, so-called “neuro-therapy,” and new pharmaceuticals, raise exciting possibilities for human “evolution.” But, if not developed and used responsibly, they and the legislation they spawn, could also pose new threats to cognitive freedom.² The trend of technology is to overcome the limitations of the human body. And, the Web has been characterized as a virtual collective consciousness and unconsciousness. What are the implications for mental autonomy when wearable computers become wet-wired to our own minds and memory is augmented by a high-speed wireless connection to the Web? Similarly, advances in biotechnology and drug-design increasingly raise legal and ethical questions related to cognitive liberty, including what rights people will have to access these and other technologies, and what rights we will have to avoid them.

Consciousness is so complex and multifaceted that it may never be understood. Unfortunately, the inability to understand consciousness does not equate to an inability for others to control it. How then can we recognize nefarious attempts to control consciousness? In one respect, absolute control of one’s own consciousness is an impossibility. While each of us carries our own brain in our own skull, the process of consciousness itself is interactive. All our senses continuously feed data into our brains, producing a dance of cognition that perpetually swirls the exterior world with the interior world creating a seamless, edgeless, apperceptive feedback loop. Our minds are continually changing, continually interfacing with “the other.” Cognitive liberty clearly cannot mean cognitive isolation.

Mind control, like most everything else, comes in degrees. A discussion with a friend may make you change your opinion on a topic, it may even change your life, but does that amount to “mind control?” Was your cognitive liberty violated? Over $US200 billion dollars is spent each year by companies unabashedly striving to manipulate our desires, to literally make us want their product. If you see an advertisement (or many) for a product and that advertisement, replete with imagery of the good life, causes you to purchase the product, have you been the victim of mind control? Has your cognitive liberty been violated?

What if the advertisement is embedded with auditory or visual subliminal messages? What if the advertisement is embedded in prime-time television programs, passing as program content, rather than demarked as a “commercial?”³ Or, suppose you are a 12-year-old placed on Prozac®, or Ritalin® largely because your schoolteacher has “diagnosed” you as depressed or suffering from Attention Deficit Disorder. Has your cognitive liberty been violated?

In 1969, Justice Marshall wrote, without mincing words, “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”⁴ Yet, contrary to Justice Marshall’s strong pronouncement, the US government has not consistently respected or protected cognitive liberty. Indeed, some of the government’s offenses seem to come directly from the pages of a dystopian novel like George Orwell’s Nineteen Eighty-Four.⁵

Imagine, for example, if the government passed a law mandating that all citizens receive monthly injections of time-release sedatives, justifying the law on the “public health” grounds that sedated people are more productive at routine repetitive tasks, are less violent, and are less of a drain on public resources. What if those who did not voluntarily report at the time and place appointed for their injection were rounded up by the police, and forcefully lobotomized? Would anyone doubt that such a law infringed not just on one’s physical freedom but also on one’s cognitive freedom? It’s not exactly an unthinkable scenario. From the 1920s through 1970, pursuant to the laws of at least 32 states, more than 60,000 people were deemed “eugenically unfit.” Many of these people were involuntarily sterilized, in part because of low scores on intelligence tests.⁶ When one of these laws was challenged, and the case reached the United States Supreme Court, it was upheld—with Justice Oliver Wendell Holmes smugly proclaiming, “Three generations of imbeciles are enough.”⁷

Until 1973, “homosexuality” was listed as a psychiatric disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM). People who admitted being homosexual, or who were “accused” of being gay or lesbian, were subject to involuntary confinement under mental health laws, and subjected to “reparative therapy” or “conversion therapy” designed to convert them into heterosexuals. “Treatment,” in addition to counseling, included penile plesthysmograph (electronic shock triggered by penile erection), drugging, and hypnosis. Even though homosexuality was deleted from the DSM in 1973, it was not until December 1998 that the American Psychiatric Association finally disapproved of “reparative” or “conversion” therapy.⁸

In the 1950s, 60s, and early 70s, the US government illegally and unethically drugged unwitting US citizens with psychoactive substances, including LSD, as part of projects bluebird, artichoke, and mk-ultra, all in an attempt to develop techniques of mind control. Richard Helms, the chief planner of mk-ultra, wrote in a planning memorandum that the program was designed in part to:

While the mk-ultra program began with tests in the laboratory on willing volunteers, the CIA quickly saw the need to expand the testing to determine what the effects of drugs such as LSD would be on unsuspecting people. Thus, in 1953, the CIA moved its mind control program into the streets of America and began the “covert testing of materials on unwitting US citizens.”¹⁰

In subsequent installments of this essay, we will see how the US Government continues to promulgate certain policies that, while cloaked in “public health” or “public safety” justifications, amount to an impermissible government action aimed at policing thought and interfering with the mental processes of citizens.

The right to control one’s own consciousness is the quintessence of freedom. If freedom is to mean anything, it must mean that each person has an inviolable right to think for him or herself. It must mean, at a minimum, that each person is free to direct one’s own consciousness; one’s own underlying mental processes, and one’s beliefs, opinions, and worldview. This is self-evident and axiomatic.

In assessing what rights are fundamental and thus entitled to the most stringent legal protection, the US Supreme Court has stated that, fundamental liberties are those “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed.”¹¹ Under another test, fundamental liberties were characterized by the Court as those liberties that are “deeply rooted in this Nation’s history and tradition.”¹²

But, while certain justices have, at times, pointedly acknowledged the fundamental nature of cognitive freedom and the nefarious nature of government (or other “outside”) interference with the intellect, this important freedom remains only obliquely defined within the US legal system. Ironically, the lack of a comprehensive treatment may be because cognitive freedom is so self-evidently a basic human right. Whatever the reason, without a coherent cognitive liberty jurisprudence, present and future infringements on cognitive liberty risk passing unnoticed or unremedied. In the next installment of this essay, we will begin to dig deep into privacy, due process, and First Amendment cases, in an attempt to excavate a theoretical scaffolding for cognitive liberty. As I believe the cases will show, cognitive liberty is the invisible landscape from which springs some of our most cherished and protected freedoms.

1 J. Jacobi, ed., Selected Writings (New York: Pantheon Books, 1951).

2 One example of fiction-like technology looming just over the horizon was recently discussed by MIT-educated futurist Ray Kurzweil, who has forecasted the coming of nanobot brain scanners. These nanobots would be blood-cell-sized robots that travel through capillaries in the brain and take high-resolution scans of the neural features. These bots would be tied together on a wireless LAN, and comprise a distributed parallel computer with the same power as the brain that was scanned. (“The Story of the 21st Century” in Technology Review Jan./Feb. 2000, 82-83.)

Kurzweil says that every aspect of this scenario is feasible today “except for size and cost.” For more of Kurzweil’s ideas, see his book The Age of Spiritual Machines: When Computers Exceed Human Intelligence (New York: Viking, 1999).

3 See “Big Brother Puts a New Twist on the Telescreen,”infra, 60.

4 Stanley v. Georgia (1969) 394 U.S. 557, 565.

5 G. Orwell, Nineteen Eighty-Four (New York: Harcourt, Brace & Co., Inc., 1949).

6 J. Robitscher, ed., Eugenic Sterilization (Springfield, Il: Charles C. Thomas, 1973), 118-119 [listing sterilization data for most states]; E. Brantlinger, Sterilization of People with Mental Disabilities: Issues, Perspectives, and Cases (Westport, Con.: Auburn House, 1995) 25; E.J. Larson & L. Nelson III, “Involuntary Sexual Sterilization of Incompetents in Alabama: Past, Present, and Future,” 43 Alabama L. Rev. 399 (1992), 407.

7 Buck v. Bell (1927) 274 US 200, 207. Eugenic sterilization, including the Norplant contraceptive device, will be further discussed in subsequent installments of this essay.

8 “American Psychiatric Association Rebukes Reparative Therapy,” Press Release No. 98-56, December 14, 1998. Viewable online at http://www.psych.org/news_stand/rep_therapy.html. [Accessed: 23 January 2000.]

Alan Turing, one of the founding fathers of artificial intelligence theory, was arrested for violation of British homosexuality statutes in 1952 after he admitted having a homosexual affair. Believing that his sexual orientation was a personal matter, neither a sin nor a crime, he presented no defense at his trial, which occurred on 31 March 1952. In lieu of prison, he was ordered to submit to estrogen injections for a year. Following a period of depression, likely the result of the injections, he committed suicide on June 7, 1954.

9 “Memorandum from ADDP items to DCI Dulles, 4/3/53” quoted in The Mind Manipulators (Paddington Press, 1978), 132.

10 Inspector General’s Report on mkultra, (August 14, 1963), 7, quoted in The Mind Manipulators, supra, 133.

For more details on the government’s bluebird, artcichoke, and mkultra programs (at least those details not lost forever when Richard Helms, ordered the destruction of all records related to the projects in January 1973) see A. Scheflin & E. Opton, “Tampering With The Mind (l) & (ll),” in The Mind Manipulators, supra, (1978), 106-212.

11 In Palko v. Connecticut (1937) 302 U.S. 319, 325, 326.

12 Moore v. East Cleveland (1977) 431 U.S. 494, 503 (opinion of Powell, J.).