Reconciling Individual Autonomy and Government Interests in Regulating Cognitive Enhancement
There are a number of different reasons that courts and legal thinkers might reject such an argument for treating enhancement through medicine as constitutionally equivalent to enhancement through expression. But here I focus and respond to one major objection: that the Constitution expressly and specifically protects our use of one means to a particular end does not necessarily leave courts free to substitute other means to the same end and give those means the same constitutional status. The First Amendment does not merely aim to protect each individual’s interest in the “free development and operation of her mind”; it protects that interest in a particular way—by protecting a person’s unrestricted use of language. If we decide to use drugs rather than books to reshape our mental processes, constitutional protection will not necessarily move with us from the realm of language to that of medicine.
As one constitutional scholar has written, one key purpose of First Amendment law and other aspects of the Bill of Rights is to mark and give force to a boundary, long significant in liberal theory, between “the outward realm of the state and the inward life of the individual.”29: 657 When a person takes a project of self-revision from his private or local library to the realm of medicine, some might argue that he is effectively carrying it to the “outward side” of this dividing line, a side where dangers to health justify extensive state monitoring and regulation.
There is, however, another way to conceive of what happens when individuals use medical tools to reshape their minds. In the first place, even if First Amendment rights cannot move with a person as he moves from the realm of speech and other expression to the realm of medical conduct, there are other constitutional rights that can apply in the latter realm. American courts have found that the due process rights in the Constitution’s Fifth and Fourteenth Amendments protect against state interference in certain kinds of very personal decisions, including decisions about whether to use birth control30 or terminate a pregnancy31 and whether to refuse medical treatment.32 One could conceivably argue that just as these personal decisions about medical procedures are insulated from the state power, so, too, should be the decisions someone makes about whether to receive a particular kind of psychiatric or psychological treatment. So far, however, courts have rejected the claim that individuals have due process rights to receive treatment from a psychologist or psychiatrist.41 1232-1233
In the second place, there is another answer to the argument that freedom of thought loses its constitutional shielding when it is exercised with tools that raise medical dangers. This is not how courts analyze speech-enabling tools. Rather, they follow an alternative model that is far more protective of autonomy and does not simply surrender the challenge of protecting it as soon as one is in territory where some state regulation is justified. As noted earlier, in the modern world, effective communication requires not only that I am left free to speak and write, but also that I have access to certain technologies and communications media. It may require, for example, that I have a cell phone, a computer, and an Internet connection. My cell phone technology, cell phone service, and Internet connection are, in certain important respects, regulated by the Federal Communications Commission (FCC),vl but that does not mean the FCC has the power to regulate what I say or write using such communications media. The government might likewise regulate the chemicals in paints™ but be barred from restricting the type of art that I create with such paints. We might ask whether such a line—between what is off-limits to government and what is fair game for official restriction—can and should be drawn not only for speech-enabling technologies, such as phones and computers, but also for thought-enabling technologies. Even if government may (and perhaps must) monitor and regulate the way that drugs or TMS devices affect our health and safety, there may be aspects of the way we use such cognitive enhancement tools that should be reserved by the Constitution (or perhaps through other means) solely for free and unrestricted individual choice.
Such an approach makes sense because it is not accurate to place cognitive enhancement solely on the state’s side of the dividing line between “the outward realm of the state and the inward life of the individual.”291657 Rather, it is more accurate to locate cognitive enhancement activity as situated partially on both sides of this boundary line. On the one hand, the health risks it raises bring it at least partly onto the traditional territory of state regulation. On the other hand, the fact that it, like language and art, is a central tool for shaping one’s thinking places it in the inward realm of individual autonomy.
Fortunately, when constitutional law is faced with such boundary-crossing activity, courts are not condemned to act as if the regulated activity is solely on one side of the boundary line and ignore its presence in the other. Rather, they have developed constitutional doctrine that allows the state to act (and sometimes act vigorously) at this boundary line between state power and individual liberty—but under careful monitoring by courts to assure that the state stays, to the greatest extent possible, on its own side of the line. They have done so largely in two ways. First, they examine the government’s motive in regulating any such activity to assure that government is really aiming its coercive power at a matter that is the legitimate business of the state and is not simply using such a matter as a pretext to restrict speech or thought it dislikes. For example, government is permitted by First Amendment law to punish serious threats of violence (“true threats”).35: 359 But if officials selectively prosecute a government opponent for making such threats while ignoring threats of the same kind and gravity made by government supporters, a court might conclude that the government is not pursuing the legitimate end of acting against violence and intimidation but is rather using this rationale as a pretext to punish political opponents.35 360-361;36: 381
Second, courts at times go further: even if the government’s motive is a motive of the right kind, courts still sometimes worry that the incidental damage its regulation does to speech or thought is not j ustified by the government’s interests or not necessary to further those interests. The leading case on this issue is the 1968 case of United States v. O’Brien, wherein a man was arrested and prosecuted when he burned his draft registration card to protest the Vietnam War—in a kind of expression that is carried out through nonverbal conduct rather than words (and hence is often called “expressive conduct” or “symbolic conduct”).35 377 As in the “true threat” example I have just discussed, the Court began by asking about motive: the First Amendment here, the Court concluded, prevents the government from targeting the protester’s anti-war message but leaves officials free to target (and stop) the damage he does to the draft registration system. But it also went further. Even where the government is not targeting the expression of a protestor or other speaker—even when it is focusing on the conduct side of “expressive conduct”—it still inevitably does some incidental damage to speech by banning people from burning draft cards as a show of disgust. And the Court thus imposed an additional hurdle in the way of a state restriction on draft card burning to make sure there is a good reason for this incidental damage (a “substantial government purpose” rather than a trivial concern) and that the government has taken steps to minimize the damage it does to expression (that its measure does not bar substantially more speech than is necessary to achieve this substantial government purpose).37: 377-378
Consider, then, how each of these two methods of constitutional boundary analysis might be applied to cognitive enhancement. Consider laws that allow antidepressant drugs to be prescribed only to patients with a diagnosed illness, not to healthy patients who want to feel “better than well.”38: x The courts’ first response to such a law might be to ask why the government is imposing such a ban. If the government is doing so because it wishes to stop individuals from generating the confidence or happiness they seek, or generate any other mood likely to arise from use of the SSRIs, government would seemingly be violating the freedom of mind mandate by restricting mental processes themselves. It would arguably be attempting assert government power over a decision that the Constitution reserves to each individual: namely, how to feel, how to shape the cognitive or emotional lens through which they will experience the world. If, by contrast, government bars use of SSRIs because of concern about the risks of serotonin syndrome, for example, or other dangerous side effects, it would be acting with a constitutionally permissible motive. Quite likely, that would be the end of a court’s inquiry. It would find the government’s ban on SSRI use by the healthy is constitutional because banning potentially dangerous drugs is a rational way to promote the legitimate objective of protecting patient safety.
However, courts might go further and address the concern that, even where government regulation of cognitive enhancement drugs is rooted in legitimate safety concerns, this should not—by itself—give the government authority to restrict individuals’ mental freedom or “cognitive liberty” far more than is necessary to address those safety concerns. Perhaps, for example, government has imposed a complete ban where something less restrictive will satisfy the safety concerns it is worried about. For example, the state might instead institute a “gatekeeper” system in which a doctor must assess and discuss risks for a particular individual before drugs are prescribed or require a mandatory course on side effects before use of cognitive enhancement drugs.39
This is not currently the legal regime that courts use to evaluate cognitive enhancement regulation. But the government motive inquiry component of it has already found a place in freedom of thought jurisprudence in obscenity cases. In the leading case on this issue, the 1969 case of Stanley v. Georgia, the Court found that Georgia violated the First Amendment when it arrested and prosecuted a man (Robert Eli Stanley) for possessing an obscene film in his own house.7: 565 Whereas obscenity was not, and is not, generally protected under First Amendment law,40 the Court seemed to think that when government punished a person for having obscene materials in the privacy of his own home, it could have no purpose for doing so other than to “protect an individual’s mind from the effects of obscenity.” This, said the Court, was an impermissible government motive: “Government,” it insisted, may not “constitutionally premise legislation on the desirability of controlling a person’s thoughts.”7: 566 By contrast, restriction of thought is permissible—as the Court made clear in later cases—where it is merely the by-product of government action targeting something else (that is a legitimate target of government regulation). Government does not violate the First Amendment, for example, when it prohibits possession of child pornography and does so not to prevent the would-be viewer of such pornography from having certain feelings in response to it but rather to protect the children victimized by it.41: 109 As one court put this idea, only “governmental regulations aimed at mere thought, and not thought plus conduct, trigger freedom of thought protection.” “Regulation aimed at conduct which have only an incidental effect on thought,” it said, “do not violate the First Amendment’s freedom of mind mandate.”42: 765
However, applying this model to cognitive enhancement raises at least two problems. First, how does one tell what counts as an impermissible government purpose? One major problem with attempting to draw a legal line of this sort—between “the outward realm of the state and inward realm of the individual”—arises if we concede that the state is warranted in safeguarding mental as well as bodily health. The goal of protecting mental health inevitably seems to bring the state at least some way into “the inward realm of the individual.” For example, the FDA might require warning labels (and conceivably more restrictive measures) on the marketing of a drug if one of its side effects is increased depression.43 And because the line between mental health and mental well-being is not an entirely clear one,vul some courts may find that if government has a right to regulate use of SSRIs or methylphenidate to guard against increased depression, it should also be allowed to do so in order to protect against other negative psychological effects (or risks) of cognitive enhancement that do not rise to the level of mental illness. Consider, for example, a situation in which certain legislators worry that use of SSRI drugs might make people feel less authentic.45: 182 Or make them feel emotionally flat or numb to certain painful experiences that a fulfilling life—for them and for their family—requires they face, cope with, and learn from rather than avoid.46: 255 Or that someone who takes these drugs to battle shyness will not only erase that shyness, but also unthinkingly eliminate with it some of the unheralded benefits that characterize the life of an introvert.47: 166-167;n. 36 Would any or all of these attempts to assure people’s mental well-being (and that of their family) be on the constitutionally permissible side of the dividing line between permissible and impermissible government purposes?
To the extent that such a line is a blurry one, it becomes far less useful for courts. First Amendment law on speech might again provide some guidance here. Among the technologies of speech that have been granted protection in recent years are video games and other uses of computer-based technology.
Like pharmacological enhancement, such technology has been blamed for altering human psychology and changing it for the worse. Many, for example, feel that violent video games make those who play them more aggressive.48 California went so far as to ban the sale of violent video games to minors49 in a statute that the Supreme Court struck down (in 2011) as inconsistent with the First Amendment’s free speech protection.50 Others have argued that young individuals’ absorption in texting, Web surfing, and other behaviors of the Internet era is “rewiring their brain” in ways that reduce their capacity for serious thought. Nicholas Carr writes that “the Net’s cacophony of stimuli short-circuits both conscious and unconscious thought, preventing our minds from thinking either deeply or creatively.”511 115 In the American constitutional system at any rate, such concerns about psychological effects do not by themselves empower the state to restrict speech, art, or video game playing.lx Courts have been hesitant to let the state use such grounds as justifications to cross into—and impose restrictions in—spheres set aside for individual autonomy. This is perhaps because such spheres would not provide a very secure shelter for autonomy were officials permitted to intrude upon them any time they could tell a plausible story of how video games—or for that matter, music, movies, and even books—could have negative psychological effects. Perhaps, then, the law should take the same stance toward the psychological effects of cognitive enhancement drugs where such effects do not rise to the level of physical illness or what society regards as serious mental illness: the possibility of negative psychological effects, should not, by itself, be enough to justify government restriction. Skeptics or critics of cognitive enhancement might still argue vigorously and successfully against their use. But, like arguments against certain forms of expression, such arguments would generally have to be aimed at individuals and their doctors rather than at state regulators.
This analysis might be somewhat different when the concern about cognitive enhancement is not that it might harm someone who seeks it out and voluntarily undergoes it, but rather that it might impose harms on unwilling parties. For example, some writers have worried that if cognitive enhancement drugs such as methylphenidate are legal, people will feel pressured to use them—either to keep up with those who are enhanced or in response to pressure from employers or others with a stake in their performance at work or school (see, e.g., Pasquale53: 609-610). Legalized enhancement can also harm those unable or unwilling to use it by leaving them on the less fortunate side of a stark inequality between enhanced and unenhanced members of society (see, e.g., Sandel54: 15) or possibly by transforming an individual in ways that weaken or harm relationships with family members, friends, and co-workers or interfere with fulfillment of certain social responsibilities (see, e.g., Restak55: 121- 138).
Such possible harms to third parties merit a different analysis. When the state is restricting harm to others rather than harm to self, it is more clearly on its own side of the dividing line between state power and individual autonomy. It is fulfilling the state’s central responsibility to protect people from violence, coercion, or other harm. However, in the American context at least, courts have still usually set a high bar for claims based on third-party harms. They have insisted that such proponents establish a clear causal link between the harm they fear and the expression they blame for it. The state, on this view, should not be able to exercise power over something it generally may not regulate (thought and expression) by connecting it, only with a tenuous or dubious link, to something it may regulate (threats of physical harm or coercion).x Moreover, it is only a certain kind of setback to third-party interests—such as physical harm or violence, or significant economic harm—that has traditionally justified limits on expression that causes it. Hurt feelings by themselves have not been sufficient (unless they amount to severe emotional distress).571 52-54
Nor have courts found speech restrictions justified by the inequality resulting from certain individuals’ greater access to resources for producing speech or learning from it. Certain individuals in American society already have greater access to the cognitive enhancement made possible by books, videos, and sources of private instruction. If the state may not restrict individuals’ access to these forms of enhancement on the ground that it is unavailable to others, it is not clear why it should be able to restrict pharmacological enhancement on this basis (unless there is something distinctive about the inequality generated by this medically enabled form of cognitive enhancement).
Apart from the challenge of deciding when the state’s targets for regulation are legitimate objects of state power, there is also a second challenge that arises if courts worry about the unintended effects of such power: when, one may ask, should government officials be constitutionally obligated to justify or mitigate such unintended effects? After all, as one federal court has pointed out, “thought and action are intimately entwined; consequently, all regulation of conduct has some impact, albeit indirect, on thought.”42:765 Driving laws, for example, prevent us from having some of the experiences one would have from driving faster than the speed limit (or driving while intoxicated). Gambling laws bar us from the experiences associated with certain forms of that activity. Should government have to show, for each of these legal restrictions, that the limitations that such laws place on thought are justified by substantial government interests and that their restrictions on thought are not substantially more extensive than necessary to achieve the state’s goals? Such a regime would be deeply at odds with the presumption in American constitutional law that most regulation is presumed constitutional.
Consequently, if courts adopt special safeguards for the tools we use to enhance thinking, these cannot be safeguards for everything else we do. Freedom of thought, in other words, must be characterized by principled limits, and free speech law might again provide a model. The First Amendment protects not only against censorship at the moment of communication, but also that which muzzles communication also at other points “of the speech process,” including the process of creating the speech, by recording a film, drafting a written work, or gathering the thoughts one will convey in later expression.2^596 There is a difference, however, between extending constitutional protection to all parts of the speech process and extending it to all human action that might be the subject of speech. It is one thing for the state to restrict our use of ink or word processing programs to write essays of our choice. It is another for the state to leave us with full access to those tools or resources for speech creation but deny us the right to commit illegal action (such as exceeding highway speed limits) that we might like to make the subject of an essay. A similar distinction might guide constitutional thinking on cognitive enhancement: regulators may—and inevitably will—stop us from taking certain actions in the world, such as plunging ourselves into the excitement of a chaotic fight or a dangerous driving experience. They can restrict such actions even though we might wish to make them the subject of a memory or the trigger for a certain feeling. And they should not need to justify the incidental limits that each such restriction has on our mental life. By contrast, requiring justification from officials make more sense when the restriction is to bar or impede our use of certain therapeutic tools designed to give us greater control over our thoughts and feelings.