On Cognitive Liberty
Parts I, II, III
By RICHARD GLEN BOIRE, ESQ.
ON COGNITIVE LIBERTY (PART I)
Thoughts are free and are subject to no rule.
As we frantically race into the third millennium, with micro-processors
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 them.
CALIBRATING COGNITIVE LIBERTY
Part of 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 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
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 inconsistently.
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 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
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”
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 MKULTRA, all in
an attempt to develop techniques of mind control. Richard Helms, the chief
planner of MKULTRA, 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 control.9
While the MKULTRA 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.
FREEDOM’S INVISIBLE LANDSCAPE
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
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 man’s
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 alone—the 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 protected freedoms.
ON COGNITIVE LIBERTY (PART 2)
…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
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
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
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
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.
On Cognitive Liberty (Part III)
IN THE LAST DECADE, new computer-based methods for storing, searching, and
sharing data about individuals have proliferated. With the popularization
and commercialization of the Internet, the tracking of individuals and their
databodies has become big business, one in which governments increasingly
participate. In a similar vein, optical devices have become smaller and
cheaper, leading to an expansion of government and corporate surveillance
cameras, which continuously monitor an ever-increasing number of private and
public spaces. These technologically-facilitated developments have
revitalized the ongoing debate about privacy. At issue is what form privacy
will take—both as a principle, as well as a legal protection—in the
so-called Information Age.
While it is commonly thought of as a fundamental right, privacy is not
expressly protected by the U.S. Constitution. In the United States, the law
of privacy has developed in a hodge-podge manner, largely by Supreme Court
decisions in which the Court was presented with a specific factual scenario
and determined whether or not a privacy right existed in that specific
instance. This development pattern has led some legal scholars to declare
that rather than an overarching “right to privacy,” citizens of the United
States enjoy only particularized “rights” to privacy–those that the U.S.
Supreme Court has established in various cases, or that the U.S. Congress
has enacted as specific statutory protections.
The U.S. Supreme Court, for example, has found a fundamental right to
privacy in the following basic areas: (1) reproduction, (2) marriage, (3)
activities inside the home, (4) the right to refuse medical treatment, and
(5) raising children. Similarly, Congress has passed federal laws or
regulations that grant (to a greater or lesser degree) privacy protection in
a host of areas, including the contents of first-class mail, information
concerning which videotapes you rent, and information about your bank
Although these protections were created by particular court decisions or by
specific statutory enactments, they share an underlying reasoning and common
principles, revealing that a general concept of privacy does indeed exist.
The legal concept of privacy has developed in fits and starts, often in
union with technological developments. Up until the late 1800s, “privacy”
was by-and-large limited to providing a remedy when someone physically
interfered with your (private) property or with your physical body. A
hundred years ago, the right to privacy was not much more than a right to be
free from physical battery and a right to repel invaders from your land. A
major development occurred in 1890, when Samuel Warren and Louis Brandies
penned an influential law review article titled “The Right to Privacy.”1
Warren and Brandies wrote at the time when portable cameras and audio
recording devices were—for the first time—available to common people, and
newspaper reporters aggressively embraced these new devices. It was the
genesis of the paparazzi.
In their article, Warren and Brandies articulated a legal principle, based
on general concepts of privacy, which would provide people with protection
against reporters’ efforts to publicize personal information. As Warren and
Instantaneous photographs and newspaper enterprises have invaded the sacred
precinct or private and domestic life; and numerous mechanical devices
threaten to make good the [biblical] prediction that “what is whispered in
the closet shall be proclaimed from the housetops.”2
With their focus on the events of their time, Warren and Brandies sketched
out a theory of privacy that was an extension of the common law protection
of (private) property—a new theory designed to encompass and protect the
public disclosure by reporters of private or personal information. This
broader right they succinctly termed “the right to be let alone.”
Over 100 years later, this basic phrase remains the touchstone of what is
commonly meant by the “right to privacy.”
COGNITIVE LIBERTY AND THE RIGHT TO PRIVACY
Just as Warren and Brandies called for a revisioning of “privacy” in the
then-new age of portable cameras and audio recorders, as we enter into the
third millennium, with ongoing developments in drug creation, nano-technology,
genetic engineering, and mind-machine interfacing, it is again time to
explore the meaning of privacy and the scope of what is to receive legal
protection as “private” in this (post)modern age. As the U.S. Supreme Court
noted in 1910:
Legislation, both statutory and constitutional, is enacted, it is true, from
an experience of evils but its general language should not, therefore, be
necessarily confined to the form that evil had theretofore taken. Time works
changes, brings into existence new conditions and purposes. Therefore a
principle to be vital must be capable of wider application than the mischief
which gave it birth. This is peculiarly true of Constitutions. They are not
ephemeral enactments, designed to meet passing occasions. They are, to use
the words of Chief Justice Marshall, “designed to approach immortality as
nearly as human institutions can approach it.3
Thus, while the current privacy debate has centered on new computer
surveillance technology with the power to capture and control more and more
data about each of us, it is time for the privacy debate to acknowledge, and
make explicit, that a person’s mind and mental processes must be protected
as private. “[T]he concept of privacy embodies the ‘moral fact that a person
belongs to himself and not others nor to society as a whole.’”4 Certainly, a
person’s thoughts and thought processes belong to himself or herself, and
not to society, the government, or any other meddlesome external force.
Inasmuch as a right to privacy entails the right to be let alone, and
centers on the interior and intimate aspects of a person’s life, cognitive
freedom and autonomy should become a central touchstone for how we conceive
of, and apply, a modern right to privacy. The areas in which the Supreme
Court or Congress has expressly declared a right to privacy all center on
interior spaces as opposed to exterior spaces, and serve to strengthen and
protect the autonomy of the personal, or individual self. There is nothing
more interior, and nothing more important and central to individual autonomy
than one’s consciousness. Indeed, without independent consciousness, no
sense of self is even possible.
Despite its self-evident importance to us today, the idea that a person is
entitled to privacy over his or her own thoughts and thought processes is
actually a fairly recent concept. For most of history, the inner workings of
the mind have been perceived as a threat to the Church-State. Broad expanses
of the U.S. legal system are premised on an Aristotelian-Thomistic world
view. Both Aristotle and Thomas Aquinas viewed God as a “Supreme Being” who
exists outside of and above humankind. In contrast to God, evil was located
within the individual. The concept of privacy that developed under the
Aristotelian-Thomistic belief system was one inherently skeptical of the
human interior and sought to essentially force into private—to shield behind
closed doors—such things as death, birth, and personal hygienic matters.
Under the Aristolian-Thomistic tradition, the privacy protections that did
exist were limited to those that would benefit the community and ultimately
promote the pleasure of God. Privacy, then, to the extent that it exists
under a Aristotelian-Thomistic paradigm is there to serve and promote the
“general will” rather than to advance individual autonomy and
A Platonic or Buddhist belief system is just one among a host of other ways
to view the world. In these systems of thought (and many other “religions,”
and/or “philosophies”), god(s) exists both inside and outside of each
person. Thus, a person’s interior thoughts and thought processes are not
feared, but are instead cultivated, revered, and protected.
Today, however, the U.S. prides itself on being a secular, pluralist
country, free from the shackles of a dominating Church power. As such, it is
no longer appropriate to limit the concept of privacy to centuries-old
models; indeed, just as Brandies and Warren did over a century ago, it is
imperative that we continue to update our concept of privacy to fit current
A modern conception of privacy must shed the long-standing allegiance to a
single way of conceiving of Reality, and recognize that privacy is rooted in
furthering human dignity and autonomy, and in protecting each person’s right
to conceive of the world in his or her own way. Describing the contours of a
modern right to privacy, Robert Ellis Smith, attorney and publisher of the
Privacy Journal, aptly included “a sense of autonomy, a right to develop a
unique personality and living space, and a right to distinguish one’s own
persona from everyone else’s.”5
As noted earlier, the U.S. Supreme Court has a spotty record with regard to
upholding individual privacy. The Court has found a narrow range of
situations in which a protected privacy right exists, and a host of
situations in which it does not. In 1928, for example, the Supreme Court
ruled that the police could tap a person’s telephone so long as they did not
enter the person’s home in order to place the tap.6 Not until 1967 did the
Court rule that the content of telephone conversations was protected as
private regardless of whether the line was tapped from inside or outside of
the home.7 In 1984, the Supreme Court held that people have no legitimate
privacy right with respect to garbage cans that they have placed on the curb
for pickup. Such garbage, held the Court, may be examined by a police
officer without any need to obtain a warrant.8 In 1989, the Court held that
the police did not violate the privacy right of an individual when they flew
over his home in a helicopter and peered through a hole in his roof in a
search for marijuana plants.9 The latter two cases grew out of the War on
(certain) Drugs, but their holdings extend far beyond drug cases,
significantly reducing the right of privacy for all Americans.
In cases raising issues that directly concern the privacy of a person’s body
in the face of government intrusion, the decisional trend has been more in
favor of individual autonomy. For example, in 1965 the Supreme Court held
that the decision of whether to use birth control was a private issue for
married couples (a ruling later extended to unmarried couples).10 That case
involved a Connecticut law prohibiting the use of “any drug, medicinal
article or instrument for the purpose of preventing conception.” Such a law,
held the Court, infringed upon a constitutionally protected “zone of
privacy” reserved to individuals–the right to make their own decisions about
reproduction. The Court struck down the Connecticut law based on what it
called “the familiar principle, so often applied by this Court, that a
‘governmental purpose to control or prevent activities constitutionally
subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.’”11
In Roe v. Wade, the court held that the “zone of privacy” encompasses and
protects a woman’s decision to terminate her pregnancy.12
The principles underlying the Supreme Court’s privacy rulings, especially
those invoked in cases concerning an individual’s right to make decisions
about the interior of his or her body, support the proposition that personal
decisions about how to manage one’s interior thought processes and
consciousness fall within a protected zone of privacy reserved for
individuals, and protected against governmental invasion or usurpation. Just
as the Connecticut law that banned all use of contraceptives was struck down
as “unnecessarily broad,” today’s drug prohibition laws, which outlaw all
use of certain plants and psychoactive chemicals, trespass upon the zone of
privacy that protects an adult’s right to make decisions about how to manage
his or her own consciousness.
Society recognizes cognitive privacy as reasonable. What goes on exclusively
inside a person’s mind has traditionally been a private affair. The specter
of Orwell’s “mind police” is universally chilling, as is the idea of a
government employing mind control or thought-manipulation techniques on its
citizenry. It is, indeed, a conservative position to state that if freedom
is to mean anything, it must mean that what goes on inside a person’s skull
is a private matter and something which that person—not the government—has
the right to control.
Just about the only time this cognitive privacy principle is questioned is
when it is applied to “drugs.” For example, in 1968, the U.S. Supreme Court
held that “the mere private possession of obscene matter cannot be made a
crime.”13 In this case, Mr. Stanley was found in possession (in his own
home) of some pornographic films. He was prosecuted under a Georgia law that
made possession of “obscene matter” a crime. The U.S. Supreme Court struck
down the Georgia law, finding that the law violated the First Amendment. The
Court distinguished laws that regulate the public distribution of “obscene
material” from the Georgia law, which unlawfully targeted mere private
possession of such matter. Hidden away in a footnote, however, the Court
remarked that the same reasoning did not apply to drugs:
What we have said in no way infringes upon the power of the State or Federal
Government to make possession of other items, such as narcotics, firearms,
or stolen goods, a crime. Our holding in the present case turns upon the
Georgia statute’s infringement of fundamental liberties protected by the
First and Fourteenth Amendments. No First Amendment rights are involved in
most statutes making mere possession criminal.14
This was non-binding dictum (commentary that is superfluous to the actual
holding in the case). The Supreme Court has never been squarely presented
with the argument that cognitive liberty is a fundamental right, or that
outlawing mere possession or use of psychoactive drugs infringes on that
Aside from the comment in the footnote, the reasoning that pervades the
Court’s opinion in Stanley supports the fundamental principle that what goes
on inside a person’s head, the processing and information therein, is
entitled to privacy. The Court emphasized that the Constitution “protects
the right to receive information and ideas,” and that this right holds
irrespective of an idea’s “social worth.”15 The Court also accepted Mr.
Stanley’s argument that he had a constitutional right to control his own
intellect—to determine for himself what to read or watch in the privacy of
his own home:
[Mr. Stanley] is asserting the right to read or observe what he pleases—the
right to satisfy his intellectual and emotional needs in the privacy of his
own home. He is asserting the right to be free from state inquiry into the
contents of his library. Georgia contends that appellant does not have these
rights, that there are certain types of materials that the individual may
not read or even possess. Georgia justifies this assertion by arguing that
the films in the present case are obscene. But we think that mere
categorization of these films as “obscene” is insufficient justification for
such a drastic invasion of personal liberties guaranteed by the First and
Fourteenth Amendments. Whatever may be the justifications for other statutes
regulating obscenity, we do not think they reach into the privacy of one’s
own home. If the First Amendment means anything, it means that a State has
no business telling a man, sitting alone in his own home, what books he may
read or what films he may watch. Our whole constitutional heritage rebels at
the thought of giving government the power to control men’s minds.16
When Georgia countered that its law was necessary to protect people from the
detrimental effects of obscenity, the U.S. Supreme Court recoiled, noting
that Georgia’s argument was an inappropriate attempt “to control the moral
content of a person’s thoughts… an action wholly inconsistent with the
philosophy of the First Amendment.”17 The government, explained the Court,
“cannot constitutionally premise legislation on the desirability of
controlling a person’s private thoughts.”18
In the end, the Court in Stanley concluded that the government may regulate
obscenity, but “that power simply does not extend to mere possession by an
individual in the privacy of his own home.”19
The same principles ought to apply with regard to psychoactive drugs that
are used by adults in the privacy of their own homes. If, as Justice
Marshall wrote in Stanley, “[o]ur whole constitutional heritage rebels at
the thought of giving government the power to control men’s minds,” the
State has no business telling a man or woman sitting in his or her own home,
what states of consciousness are acceptable and what states of consciousness
While the U.S. Supreme Court has never considered a case in which the issue
was framed as “cognitive privacy,” several state courts have examined the
issue of whether drug use falls within a protected privacy right.20 In all
but one case, these state courts have stacked the deck against cognitive
privacy, by narrowly framing the issue as whether or not there is a
fundamental right to use drug x, rather than whether or not there is a
fundamental right to control one’s own consciousness—a fundamental right
upon which drug prohibition laws substantially infringe.
One interesting case was decided in 1975 by the Alaska Supreme Court. In
Ravin v. State,21 the Alaska Supreme Court held that the possession and use
of marijuana within one’s own home was included within the scope of the
privacy protection guaranteed by the Alaska Constitution. The case centered
on Irwin Ravin, a man arrested and charged with possession of marijuana. Mr.
Ravin filed a motion to dismiss, arguing that Alaska’s laws prohibiting
marijuana use unconstitutionally infringed upon his right to privacy as
guaranteed by both the U.S. and Alaska Constitutions.
The Alaska court examined U.S. Supreme Court precedent and concluded that
the opinions by the high court do not support a privacy right to possess
marijuana, because “the federal right to privacy only arises in connection
with other fundamental rights.” The Alaska court then went on to examine
whether the privacy protection of the Alaska Constitution protects an
adult’s possession of marijuana in his or her home.22 The court noted that
in a previous case,23 it struck down a public school rule that prohibited
long hair, finding that the school’s rule was prohibited by the Alaska
Constitution’s privacy protection. In that case, the Alaska Supreme Court
explained that “the right ‘to be let alone’—including the right to determine
one’s own hairstyle in accordance with individual preferences and without
interference of governmental officials and agents—is a fundamental right
under the constitution of Alaska.”
The court then revealed an anti-marijuana bias, stating “few would believe
they have been deprived of something of critical importance if deprived of
marijuana, though they would if stripped of control over their personal
appearance.” Here, the court was making an assumption without evidentiary
support, and was also incorrectly framing the issue. Some people consider
their marijuana use at least as important as their choice of hairstyle.
Further, the court drew a false comparison: comparing a broad principle: “to
control one’s appearance;” with a narrower principle: “to smoke marijuana.”
The correct analogy would have been to compare the two actions at the same
level of generality; thus, the right to control one’s outward appearance
ought to have been compared to the right to control one’s inner cognition.
Based on its faulty comparison, the Ravin court refused to find that
marijuana smoking was within the Alaska constitution’s privacy protection.
Instead, the court relied on the well-established privacy protections
surrounding the home. The court explained, “if there is any area of human
activity to which a right to privacy pertains more than any other, it is the
home.”24 The right to privacy within the home, held the court,
“encompass[es] the possession and ingestion of substances such as marijuana
in a purely non-commercial context in the home, unless the state can [show
that outlawing possession of marijuana in the home is necessary to achieve a
legitimate state interest.]” More specifically, the court noted that the
government had the “burden of showing a close and substantial relationship
between the public welfare and control of ingestion or possession of
marijuana in the home for personal use.”25
Having shifted the burden to the government, the court then examined whether
the government had met its burden. At trial, the government claimed that the
use of marijuana caused a host of health problems to the marijuana user,
including damage to the immune system and chromosomal structure, extreme
panic reactions, long-term psychological problems, loss of motivation, and
occasional violent behavior.
Before addressing these assertions, the Alaska Supreme Court questioned
whether the government has a legitimate interest in “protecting” a person
from him or herself. While the court was able to conceive of some
circumstances in which the government may have a legitimate interest in
protecting a person from him or herself, such government paternalism was the
exception rather than the rule:
...the authority of the state to exert control over the individual extends
only to activities of the individual which affect others or the public at
large as it relates to matters of public health or safety, or to provide for
the general welfare. We believe this tenet to be basic to a free society.
The state cannot impose its own notions of morality, propriety, or fashion
on individuals when the public has no legitimate interest in the affairs of
those individuals. The right of the individual to do as he pleases is not
absolute, of course: it can be made to yield when it begins to infringe on
the rights and welfare of others.26
Having stressed that the government should not be in the business of
protecting people from themselves, the court nevertheless examined the
government’s claims that marijuana was dangerous to its users, finding the
evidence of serious harm unpersuasive. The court explained:
It appears that the effects of marijuana on the individual are not serious
enough to justify widespread concern, at least as compared with the far more
dangerous effects of alcohol, barbiturates and amphetamines.27
Ultimately, the Alaska Supreme Court concluded “no adequate justification
for the state’s intrusion into the citizen’s right to privacy by its
prohibition of possession of marijuana by an adult for personal consumption
in the home has been shown.”28
While the Ravin case was a clear victory for marijuana users, and for
privacy advocates in general, it was more about the privacy of the home,
than about cognitive freedom and privacy.29 As mentioned earlier, the court
did not consider whether cognitive liberty was protected by the United
States Constitution or by the Alaska constitution. Instead, the decision
simply underscored the longstanding and socially accepted principle that a
“man’s home is his castle.” The case has yet to be forcefully made that our
minds, as much as our homes, are a private inward domain entitled to
protection against unwanted governmental intrusions and prohibitions.
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:
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.,
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.).
13 Olmstead v. United States (1928) 277 U.S. 438, 478 (Brandies, J.,
1 Kovacs v. Cooper (1949) 336 U.S. 77, 97 (concurring opinion of J.
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,
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
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,
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
Alchemind Society’s Drug Law Library at www.cognitiveliberty.org/links.htm
[Accessed: May 17, 2000.]
1. L.D. Brandies and S. Warren, “The Right to Privacy. The Implicit Made
Explicit,” in Harvard L.R., 4; (1890) 193-220.
2. Ibid., 82.
3. Weems v. United States (1910) 217 U.S. 349, 373.
4. Thornburgh v. American College of Obstetricians & Gynecologists (1986)
476 U.S. 747, 777, n. 5 (Stevens, J., concurring), quoting Fried,
Correspondence, 6 Phil. & Pub. Affairs (1977) 288-289.
5. Quoted in D. Brin, The Transparent Society (Reading, Mass.:
Addison-Wesley, 1998) 77.
6. Olmstead v. United States (1928) 227 U.S. 438.
7. Katz v. United States (1967) 389 U.S. 347.
8. California v. Greenwood (1988) 486 U.S. 35.
9. Florida v. Riley (1989) 488 U.S. 445.
10. Griswold v. Connecticut (1965) 381 U.S. 479.
11. Ibid., 485, quoting, NAACP v. Alabama (1964) 377 U.S. 288, 307.
12. Roe v. Wade (1973) 410 U.S. 113.
13. Stanley v. Georgia (1968) 394 U.S. 557, 559.
14. Ibid., 568, fn. 11.
15. Ibid., 564.
16. Ibid., 565.
17. Ibid., 565-566.
18. Ibid., 566.
19. Ibid., 568.
20. State v. Murphy, 570 P.2d 1070, 1073 (Ariz. 1977); Kreisher v. State,
319 A.2d 31, 32 (Del. Super. Ct. 1974); Laird v. State, 342 So.2d 962, 963
(Fla. 1977); Borras v. State, 229 So.2d 244, 246 (Fla. 1969); Blincoe v.
State, 204 S.E.2d 597, 599 (Ga. 1974); State v. Renfro, 542 P.2d 366, 368-69
(Haw. 1975); State v. Baker, 535 P.2d 1394, 1399 (Haw. 1975); State v.
Kincaid, 566 P.2d 763, 765 (Idaho 1977); State v. O’Bryan, 531 P.2d 1193,
1198 (Idaho 1975); NORML v. Scott, 383 N.E.2d 1330, 1332-33 (Ill. App. Ct.
1978); State v. Chrisman, 364 So.2d 906, 907 (La. 1978); Marcoux v. Attorney
Gen., 375 N.E.2d 688, 691 (Mass. 1978); Commonwealth v. Leis, 243 N.E.2d
898, 903-04 (Mass. 1969); People v. Alexander, 223 N.W.2d 750, 752 (Mich.
App. 1974); State v. Kells, 259 N.W.2d 19, 24 (Neb. 1977); State v. Nugent,
312 A.2d 158, 162 (N.J. Super. Ct. App. Div. 1973); Miller v. State, 458
S.W.2d 680, 684 (Tex. Crim. App. 1970); State v. Anderson, 558 P.2d 307, 309
(Wash. Ct. App. 1976); State ex rel. Scott v. Conaty, 187 S.E.2d 119, 123
Some of these cases, as well as others not listed here, have compelling
dissenting opinions in which judges elaborated certain aspects of cognitive
liberty. For example, in State v. Kramer (Hawaii 1972) 493 P.2d 306, a case
upholding the defendant’s conviction for marijuana possession, Justice
Levinson filed a dissenting opinion in which he argued that the experiences
generated by the use of marijuana are mental in nature, and thus among the
most personal and private experiences possible. (Id. at p. 315.)
21. Ravin v. State (1975) 537 P.2d 494.
22. Unlike the U.S. Constitution, the Alaska constitution expressly provides
for a right to privacy. Article I, Sec. 22 of the Alaska constitution
states: “The right of the people to privacy is recognized and shall not be
23. Breese v. Smith (Alaska 1972) 501 P.2d 159.
24. Ravin, supra, 537 P.2d at p. 503.
25. Ibid., 504.
26. Ibid., 509.
27. Ibid., 509-510.
28. Ibid., 511.
29. In 1982, the Alaska legislature codified Ravin in the state’s criminal
code by legalizing possession of up to four ounces of marijuana in a private
place. (See 1982 Alaska Sess. Laws 2 ch. 45.) In 1990, Alaska voters adopted
a Voter Initiative that amended Alaska Statutes section 11.71.060 so as to
again make possession of marijuana in a private place illegal. The (state)
constitutional validity of this initiative is dubious because the initiative
merely altered the general Alaska Criminal Code, not the Alaska Constitution
itself, upon which Ravin was based. (See, e.g., State v. McNeil, No.
1KE-93-947 (D. Alaska Oct. 29, 1993).