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Liberty (Part I)
By Richard Glen
Thoughts are free and are subject to no rule.
As we frantically race into the third millennium,
with microprocessors becoming faster, cheaper, and smaller, with surveillance cameras
proliferating in public spaces, with the human genome program about to issue its first
working draft of the human DNA sequence, and with an out-of-control
Frankensteinian machine named the War on Drugs, all awhirl in the ocean of modern day
culture, it is imperative that we, as a society, expressly acknowledge the fundamental
human right to cognitive liberty and immediately begin to define its contours.
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
Calibrating Cognitive Liberty
elucidating a theory of cognitive liberty is simply recognizing when free cognition is
being infringed. Restrictions on physical liberty, for all their pain and terror, at least
have the benefit of being relatively easy to recognize and call attention to. During World
War II, the Nazi concentration camps for Jews, and the American internment camps for
Japanese Americans, were marked by the machinery of physical control: fences, barbed wire,
and guard towers. Similarly, from 1961 to 1989, a concrete and barbwire wall overseen by
116 guard towers divided the city of Berlin. Anyone who tried to cross that wall without a
special authorization risked a bullet in the back of his or her skull. In
contrast to the usual visibility of government restraints on physical liberty, restraints
on cognitive liberty are most often difficult to recognize, if not invisible.
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 ones 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?
The answers to the above questions depend upon
how finely one calibrates cognitive liberty. But some scenarios, some infringements on
mental autonomy, are crystal clear and ought to present limit cases where general
policies and specific rules emerge in high-definition clarity. Yet, even in so-called
limit cases, the US government, including its legal system, has often acted
A (Very) Brief History of
US Government Mind Control
In 1969, Justice Marshall wrote, without mincing
words, Our whole constitutional heritage rebels at the thought of giving government
the power to control mens minds.4 Yet, contrary to Justice
Marshalls strong pronouncement, the US government has not consistently respected or
protected cognitive liberty. Indeed, some of the governments offenses seem to come
directly from the pages of a dystopian novel like George Orwells Nineteen
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 ones physical
freedom but also on ones cognitive freedom? Its 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 upheldwith 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:
Investigate the development of chemical material which causes a reversible
non-toxic aberrant mental state, the specific nature of which can be reasonably well
predicted for each individual. This material could potentially aid in discrediting
individuals, eliciting information, and implanting suggestions and other forms of mental
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.
Freedoms Invisible Landscape
The right to control ones 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 ones own consciousness; ones own underlying
mental processes, and ones beliefs, opinions, and worldview. This is self-evident
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 Nations history and tradition.12
Slightly over seventy years ago, Justice Brandies
acknowledged in a landmark privacy case that cognitive freedom was one of the principal
protections designed into the Constitution:
The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the significance of mans
spiritual nature, of his feelings and of his intellect. They knew that only a part of the
pain, pleasure and satisfactions of life are to be found in material things. They sought
to protect Americans in their beliefs, their thoughts, their emotions and their
sensations. They conferred, as against the Government, the right to be let alonethe
most comprehensive of rights and the right most valued by civilized man.13
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
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
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 Kurzweils 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,
4 Stanley v. Georgia (1969) 394 U.S. 557,
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 Generals Report on mkultra,
(August 14, 1963), 7, quoted in The Mind Manipulators, supra, 133.
For more details on the governments
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) &
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.).
13 Olmstead v. United States (1928) 277
U.S. 438, 478 (Brandies, J., dissenting).
Richard Glen Boire, Esq. is the
executive director of the Center for Cognitive Liberty & Ethics.
On Cognitive Liberty (Part 2), click here.