Amicus Curiae Brief — Sell v. United States
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FILED
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ao
\ pee 19 2002
No. 02-5664 |_OPFICE OF Tw CLERE
IN THE
Supreme Court of the Gnited States
Dr. Charles Thomas Sell, D.D.S.
Petitioner,
United States of America,
Respondent.
On Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit
BRIEF AMICUS CURIAE OF THE
CENTER FOR COGNITIVE LIBERTY & ETHICS
IN SUPPORT OF THE PETITION
RICHARD GLEN BOIRE
(Counsel of Record)
Center for Cognitive
Liberty & Ethics
Court & Cedar Building
231 G. Street, Suite 7
Davis, CA 95616
(530) 750-7912
TABLE OF CONTENTS
ID ciiciisccissiiiscichsatncnsisininsieaniennacinntistameenniennsees i
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DOTRREST GP ROTC UID CUIAB cecccccsccsncccscccccscscssesccssovcssoseees l
Ce Ga iriacicccnninernsensicieiiinnnntianaianenndennsnens 2
ETTIT: cicchivsinisttheinicssieiieicieeiiesiieeiiathieiaiiasinamsiitmaias 3
I. FORCIBLY ADMINISTERING MIND-ALTERING
DRUGS TO A NONDANGEROUS PRETRIAL
DETAINEE, SOLELY TO RENDER HIM COMPETENT
TO STAND TRIAL FOR NONVIOLENT OFFENSES, IS
rea EINE cocnicccansanncnnasecmsnnenesnemensscseennes 3
B. The Government’s Forcible and Direct Manipulation
of a Person’s Mental Processes Violates the First
1. This Court’s Rulings in Harper and Riggins
Did Not Address A First Amendment Claim........ 7
2. The First Amendment Right to Freedom of Thought
Is Violated when the Government Forcibly Subjects a
Person to Drugs or Other Technology for the Purpose
of Directly Altering the Person’s Thought
a) Antipsychotic Drugs Manipulate the Brain
With the Intent and Effect of Manipulating
b) Federal Courts Have Recognized a First
Amendment Violation When the Government
Forces a Person to Take Mind-Altering
C. The Fundamental Right to Freedom of Thought
Must Be Jealously Guarded By A Clear Bright-Line
BRAID nc ccccessenscoccesesestiscnsssetionnsennsinnsaniinnaana 15
1. Abuse and Misapplication of Mental Diagnosis
Threatens to Undermine Freedom of Thought In the
Absence of an Unequivocal and Narrow Rule.... 16
2. Technological Developments Threaten to Undermine
Freedom of Thought in the Absence of an
Unequivocal and Narrow Rule...............csceseeeeees 18
D. Violating a Person’s Fundamental Right to Freedom of
Thought Solely to Advance the Government’s Interest in
Adjudicating Crimes Does Not Withstand Strict
TI NI 24
1. The Government’s Interest in Adjudicating Crimes Is,
Standing Alone, Insufficiently Compelling to Justify
Forcible Alteration of a Defendant’s Thought
2. There Are Less Intrusive Means to Advance the
Goverment’ s WE cnccccccccsictecetescentessiniasls 28
CCOODIEE AINE. .nccocccccccncesssscccniissistmniesiaismeannne 30
TABLE OF CITED AUTHORITIES
Page
Cases:
Abood v. Detroit Board of Educ.,
eee 6, 7,13
Ake v. Oklahoma, 470 U.S. 68 (1985) ........ccccccccccceceeeeees 18
Ashcroft v. Free Speech Coalition,
rT 5
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)13 n. 10
Bee v. Greaves, 744 F.2d 1387 (10" Cir. 1984) 14, 15, 28
Board of Educ. v. Pico, 457 U.S. 853 (1982) .................. 4
Brecht v. Abrahamson, 507 U.S. 619 (1993) .........000000.. 26
CTA v. Sims, 471 U.S. 159 (198S).............c0cccceccccesseesseees 23
Cooper v. Oklahoma, 517 U.S. 348 (1996) .............. 25, 26
Dusky v. United States, 362 U.S. 402 (1960).................. 25
Elrod v. Burns, 427 U.S. 347 (1976) ..........ccccccccecceeseeeees 24
Eotes Vv. Temas, SB1 U.S. S32 (1DGS) .........00c..ccccsccscesecceee 26
Florida Star v. B.J.F., 491 U.S. 524(1989) ........... 28 n. 21
Globe Newspaper Co. v. Superior Court,
en 4
Greenwood v. United States, 350 U.S. 366 (1956)......... 29
In re Guardianship of Roe, 421 N.E.2d (1981) ............ 12
Jackson v. Indiana, 406 U.S. 715 (1972) .....ccccccccccccccceeee 30
Jacobson v. Massachusetts, 197 U.S. 119 (1905).......... 30
Jones v. Opelika, 316 U.S. 584 (1942) ...........cccccccecees 10
Cited Authorities
Page
Kylle v. United States 533 U.S. 27 (2001) ...........cccccccceee 23
Lamont v. Postmaster Gen., 381 U.S. 301 (1965)............ 4
Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973) ...... 14
Medina v. California, 5054 U.S. 437 (1992) ...........000. 17
Miller v. Johnson, 515 U©. 900 (1995)................. 28 n. 21
Mills v. Rogers, 457 U.S. 291 (1982) ...........cccccsseceeeeeeee 11
N.A.A.C.P. v. Button, 371 U.S. 415 (1963).........0.cccccceee 24
Olmstead v. United States, 277 U. S. 438 (1928)........... 20
O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)....8 n. 4
Organization for a Better Austin v. Keefe,
Se ee ee crninnmusnnminnne 13 n. 10
Palko v. Connecticut, 302 U.S. 319 (1937) ...........cccccec00es 5
Riggins v. Nevada, 504 U.S. 127 (1992) ................. passim
Seattle Times Co. v. Rhinehart,
i 29 n.22
Shelton v. Tucker, 364 U.S. 479 (1960) .....0.....cccccccceeccee 29
Singer v. United States, 380 U.S. 24 (1965) ................... 27
Stanley v. Georgia, 394 U.S. 557 (1969)... 6, 16
Texas v. Johnson, 491 U.S. 397 (1989) .0.......ccccccccceeeec cues 4
United States v. Brandon,
158 F.3d 947 (6" Cir. 1998) ............-ccccsneeeesseeee 15,24
United States v. Reidel, 402 U.S. 351 (1971) ................2-. 6
United States v. Sell, 282 F.3d 560 (2002) .............. passim
Cited Authorities
Page
Washington v. Harper,
OE 7,8, 11, 110.6
West Virginia State Board of Education v. Barnette,
SOD TRG, GO Ca rceccccessenesssnasnssssrscssecsssesssemse 5,6
Wooley v. Maynard, 430 U.S. 705 (1977) ..........0ccceceeeeees 6
Youngberg v. Romeo, 457 U.S. 307 (1982) ........-.---0+++- 14
Statutes:
OD CR. Ge a crcsrecscnsssensnssncsssnssssssenssscnesensem 29
Constitutional Provisions
US Const., Amend. SD snasssesveussmunnsunsansnmmensnannensetens passim
International Authorities:
UNIVERSAL DECLARATION OF HUMAN RIGHTS,
G.A. Res. 217A (III) U.N. Doc. A/810 (1948) .10n. 5
G.A. Res. 217, U.N. GAOR, 3” Sess.,
U.N. Doc. A/810 (1948) ......ccceccecceessecsessvecseeeees lin.5
G.A. Res. 119, U.N. GAOR, 46" Sess., Supp. No. 49,
Annex, U.N.Doc. A/46/49 (1991)...................-. lln.5
Vv
Cited Authorities
Page
Other Authorities:
Final Report of the Select Comm. to Study Gov't
Operations with Respect to Intelligence Activities,
S. Rep. No. 94-755, Book I, (1976) .................000 23 n. 20
Human Drug Testing by the CIA, 1977: Hearings on
S. 1893 before the Subcomm. on Health and Scientific
Research of the Senate Comm. on Human Resources,
95Gs Come. Lat Seas. (1977) ..202.-cccecccccceccseccecessseees 23 n. 20
Project MKULTRA, the CIA's Program of Research in
Behavioral Modification: Joint Hearings before the
Select Comm. on Intelligence and the Subcomm. on
Health and Scientific Research of the Senate Comm.
on Human Resources,
95th Cong., Ist Sess. (1977) .0.........cccccccccceeseeeeeeenee 23 n. 20
Report to the President by the Comm'n on CIA Activities
Within the United States 226-228 (June 1975)......23 n. 20
United States General Accounting Office, /nvestigative
Techniques: Federal Agency Views on the Potential
Application of “Brain Fingerprinting.”
REPORT GAO-02-22, (Oct. 2001) .2.....ccccccccceceeeeneeeneenes 21
Miscellaneous:
Sharon Berry, Decoding Minds, Foiling Adversaries,
RR Eee 22
Sidney Bloch & Peter Reddaway, PSYCHIATRIC TERROR:
How SOVIET PSYCHIATRY IS USED TO SUPPRESS
PTET thceitechideeiiihlaiaititanenita cities 130.8
Cited Authorities
Page
William J. Brennan, State Constitutions and the
Protection of Individual Rights,
SE. Cen Gs SI connnsnsnemennnmectmemanaeemens 10 n. 5
Anthony Burgess, A CLOCKWORK ORANGE,
ei ilar ERI GIDUIIIE cevernnsnensnsntesesepenenenennenenementes 21n.17
Pat Cadigan, MINDPLAYERS 4, (Bantam Books 1987)21 n. 17
Pat Cadigan, SYNNERS, (Bantam Spectra 1991)....21 n. 17
E. Callahan & H. Leitenberg, Aversion Therapy for
Sexual Deviation: Contingent Shock and Covert
Sensitization,
81 J. ABNORMAL PSYCHOL. 60 (1973).............00... 17 n. 12
James F. Clarity, A Freed Dissident Says Soviet Doctors
Sought to Break His Political Beliefs, NEW YORK TIMES
I SII iis eicuccnsnhiietiiaenhi eaten ties 16
Michael Crichton, THE TERMINAL MAN,
ee 21 n. 17
Gerald Davison & John Neale,
ABNORMAL PSYCHOLOGY (8th ed. 2001)................. 12n.7
T. Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION
(Random House; NY, 1970) ........-.....cc-sssssesssessesceesees 5n.3
Joan Lakoski, W. Murray, John Kenny, The Advantages
and Limitations of Calmatives for Use as a Non-Lethal
Technique, U. Pa, (Oct. 3, 2000)................ 22, 22 n 19, 23
Cited Authorities
Page
Ennis & Litwack, Psychiatry and the Presumption of
Expertise: Flipping Coins in the Courtroom,
See Tis Celis GE cciseecinseisinneheiciinshehtanilatentideateieiihdeniaiittiiniy 18
M. Feldman & M. MacCulloch, A Systematic Approach
to the Treatment of Homosexuality by Conditioned
Aversion. Preliminary Report,
121 AM. J. PSYCHIATRY 167 (1964) .....000...000000... 17 n. 12
Robert Freitas. NANOMEDICINE VOLUME I:
BASIC CAPABILITIES (1999) .0...........cccccceeceeeeeeeeeeees 19n. 15
Aldous Huxley, BRAVE NEW WORLD
SN GUND cntenecennnnennnentestinementennenseemetennai 21 n. 17
IMS Health, Antidepressants ............0000ccccceeeeeeeees 18n. 13
IMS Health, Antipsychotics .........22..cccccccesscceeeeeeeees 18n.14
B. James & D. Early, Aversion Therapy for
Homosexuality, 1 BRIT. MED. J. 538 (1963).......... 17 n. 12
Lehtinen, Technological Incapacitation: A Neglected
Alternative, 2 Q. J. CORRECTIONS 31 (1978)......... 20 n. 16
Ira Levin, THIS PERFECT Day,
TTT aT ae a aE 21 n.17
Lewin Group, Access and Utilization of New
Antidepressant and Antipsychotic Medications
I, Sa UUTUnT biessceseensncetenienatendanitaptansinsuaneeiadtatenningasataraaiachtaastineans 19n. 14
Cited Authorities
Page
N. McConaghy, Subjective and Penile Plethysmograph
Responses Following Aversion-Relief and Apomorphine
Aversion Therapy for Homosexual Impulses,
115 Brit. J. PSYCHIATRY 723 (1969) ...0.......cc0cc00ee 17 n. 12
Kenneth Melvin, Stanley Brodsky and Raymond
Fowler, Jr.,eds. PSY-Fl ONE: AN ANTHOLOGY OF
PSYCHOLOGY IN SCIENCE FICTION
(1st ed.: Random House, 1977)................ccccccceeeeees 21 n. 17
Douglas Montero, / Was Told To Dope My Kid,
84 FS Ren 20 n. 16
Robin Munro, Judicial Psychiatry in China and its
Political Abuses, 14 COLUM. J. ASIAN L. 1 (2000)......... 16
Robin Munro, Political Psychiatry in Post Mao China
and its Origins in the Cultural Revolution,
30 J. AM. ACAD. PSYCHIATRY & L. 97 (2002) .............. 16
George Orwell, NINETEEN EIGHTY-FOUR
I I i nsenensisinteibilenseintnniametinaniennnnesies 21 n. 17
Michael Perlin, State Constitutions and Statutes as
Sources of Rights for the Mentally Disabled: The Last
Frontier? 20 Loy. L.A. L. REV. 1249 (1987) ......... lin. 5
Marge Piercy, WOMAN ON THE EDGE OF TIME,
FIN GIT stsnitnesnansenemennsemesninmerneseenmnemenannnanes 12n.17
Thomas Pynchon, GRAVITY’S RAINBOW
III on csicasinriciianeclinateseisaslieasinatmaes 13n.9
ix
Cited Authorities
Page
R. Roesch & S. Golding, Competency To Stand Trial
SPIT chesielanicaresiiiileheiaeieil it ahlaiiaaiatiaile saad 29
Michael Shapiro, Legislating the Control of Behavior
Control: Autonomy and the Coercive Use of Organic
Therapies, 47 S. CAL. L. REV. 237 (1974) .........00.. 12n.8
Robert Spitzer, The Diagnostic Status of
Homosexuality in DSM-III: A Reformulation of the
Issues, 138 AM. J. PSYCHIATRY 210 (1981) ......... 17 n. 12
Karen Thomas, Parents pressured to put kids on
Ritalin: N.Y. court orders use of medicine,
ee I, FE Gy ee eciencetisacicctinennitntornnenses 20 n. 16
Laurence Tribe, AMERICAN CONSTITUTIONAL LAW
OP TD scinstcesescnccnnertacicsenrnscsninesiomaanesaiiepis 3n.2,5,15
Bruce Winnick, THE RIGHT TO REFUSE MENTAL
HEALTH TREATMENT (1997) ...........cccccceeeeeee 11 n. 5, 20, 25
I.
INTEREST OF AMICUS CURIAE
With the written consent of the parties reflected in
letters lodged with the Clerk, undersigned counsel for the
Center for Cognitive Liberty & Ethics (CCLE), submits this
brief as amicus curiae in support of petitioner pursuant to
Rule 37 of the Rules of Court.'
The CCLE is a nonprofit education, law, and policy
center working in the public interest to foster cognitive
liberty—the right of each individual to think independently,
to use the full spectrum of his or her mind, and to have
autonomy over his or her own brain chemistry. The CCLE
encourages social policies that respect and protect the full
potential and dignity of the human intellect. The CCLE was
an amicus curiae party to this case, in support of petitioner
Dr. Sell at the petition stage, and before the Eighth Circuit
when Petition for Rehearing/Rehearing en banc was filed in
this case.
As an organization charged with defending freedom of
thought, the CCLE has a vital interest in this case because the
forcible injection of a citizen with a mind-altering drug
directly infringes on cognitive liberty and mental autonomy.
The CCLE is deeply concerned that the decision below
seriously compromises the core of the freedoms guaranteed
by the First Amendment and, if permitted to stand, will
undermine the fundamental nght of all citizens to have
autonomy over their own minds and mental processes.
In particular, the CCLE seeks to assist the Court by
demonstrating that the right at stake in this case is a
fundamental First Amendment right; the infringement of
' No counsel for a party authored this brief in whole or part, and no
person or entity other than the amicus curiae, its members or its
counsel, made a monetary contribution to the preparation and
submission of this brief.
which must withstand strict scrutiny. The CCLE seeks to
show that more is at issue in this case than what courts have
commonly termed “bodily integrity.” At stake is a
fundamental right: the nght to freedom of thought.
SUMMARY OF ARGUMENT
The CCLE submits that the court of appeals
mischaracterized the fundamental nght at issue in this case,
and as a result, erred by applying an inappropriately low
standard of review.
The fundamental nght to control one’s own intellect
and mental processes is protected by the First Amendment,
and is eviscerated if courts permit the government to forcibly
drug citizens. If government agents, with the concurrence of
the courts, can constitutionally order the forcible
manipulation of Dr. Sell’s mind in order that he may stand
trial, then any accused defendant, who poses no danger to
self or others, is also at jeopardy of losing his or her First
Amendment night to freedom of thought. This is particularly
true in light of ongoing pharmacological and technological
developments, which provide unprecedented tools for
forcibly altering the inner workings of the mind.
To clarify, the CCLE does not propose that the state
cannot regulate the behavior of individuals, including the acts
of individuals who are incoherent or who spit on or otherwise
assault judges. We maintain that the state cannot, consistent
with the First Amendment of the Constitution, forcibly
manipulate the thought processes of individuals who do not
pose a clear and present danger to others. The government
may, of course, use words and other expression to advocate
and persuade with the intent to alter thoughts, but the First
Amendment must be read to strictly forbid the government
from directly and forcibly manipulating a person’s brain with
the intent of changing what, or how, the person thinks.
ARGUMENT
I.
FORCIBLY ADMINISTERING MIND-ALTERING DRUGS TO
A NONDANGEROUS PRETRIAL DETAINEE, SOLELY TO
RENDER HIM COMPETENT TO STAND TRIAL FOR
NONVIOLENT OFFENSES, IS UNCONSTITUTIONAL
In a 2-1 ruling issued on March 7, 2002, the United
States Court of Appeals for the Eighth Circuit upheld a
District Court order allowing the government to forcibly
medicate Dr. Charles Thomas Sell with antipsychotic drugs
for the sole purpose of making him competent to stand trial
for a nonviolent crime. While the Eighth Circuit
acknowledged that Dr. Sell has a “significant liberty interest
in refusing anti-psychotic medication” United States v. Sell,
282 F.3d 560, 568 (2002), the court grossly undervalued the
individual interest at stake in this case. The right to freedom
of thought is far more than “significant;” it is situated at the
very core of what it means to be a free person in a civilized
society, and is a fundamental right protected by the First
Amendment.
A. The First Amendment Guarantees Freedom of Thought
The First Amendment, which Professor Tribe terms
“the Constitution’s most majestic guarantee,” provides:
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. U.S. CONST.
AMEND. I.
? Laurence Tribe, AMERICAN CONSTITUTIONAL LAW, § 12-1, 785
(2™ ed. 1988).
While “(t]he First Amendment literally forbids the
abridgment only of ‘speech,’ this Court has “long
recognized that its protection does not end at the spoken or
written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989);
See also Globe Newspaper Co. v. Superior Court, 457 U.S.
596, 604 (1982) (“[W]e have long eschewed any ‘narrow,
literal conception’ of the [First] Amendment’s terms, ...for
the Framers were concerned with broad principles. ...’’).
This Court has repeatedly observed that there are
derivative and corollary nghts that are essential to effectuate
the purposes of the First Amendment, or which are inherent
in the nghts expressly enumerated in the Amendment. For
example, in Lamont v. Postmaster Gen., 381 U.S. 301, 308
(1965), Justice Brennan, in his concurring opinion explained:
It is true that the First Amendment contains no specific
guarantee of access to publications. However, the
protection of the Bill of Rights goes beyond the specific
guarantees to protect from congressional abridgement
those equally fundamental personal rights necessary to
make the express guarantees fully meaningful.
Likewise, in Globe this Court observed that “[t]he First
Amendment is...broad enough to encompass those nghts
that, while not unambiguously enumerated in the very terms
of the Amendment, are nonetheless necessary to the
enjoyment of other First Amendment nghts.” Globe, 457
U.S. at 604. Thus, in 1982, this Court recognized a “right to
receive information and ideas,” locating the mght as “an
inherent corollary of the nght of free speech and press”
guaranteed by the First Amendment. Board of Educ. v. Pico,
457 U.S. 853, 867 (1982) (plurality opinion).
Freedom of thought, while not expressly guaranteed by
the First Amendment, is one of those fundamental] rights
necessary to make the express guarantees meaningful. As
Justice Benjamin Cardozo extolled, “freedom of thought...is
the matrix, the indispensable condition, of nearly every other
form of freedom. With rare aberrations a_ pervasive
recognition of that truth can be traced in our history, political
and legal.” Palko v. Connecticut, 302 U.S. 319, 326-27
(1937).
As this Court noted as recently as 2002, “[t]he nght to
think is the beginning of freedom, and speech must be
protected from the government because speech is the
beginning of thought.” Ashcroft v. Free Speech Coalition 533
U.S. 234 (2002). “The guarantee of free expression,” notes
Professor Tribe, “is inextricably linked to the protection and
preservation of open and unfettered mental activity... .” L.
Tribe, supra, § 15-7, at 1322 (2™ ed. 1988).°
Repeatedly, this Court has recognized that freedom of
thought is one of the most elementary and important rights
inherent in the First Amendment.
In West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943), this Court, in an 8-1 decision,
invalidated a school requirement that compelled a flag salute
on the ground that it was an unconstitutional invasion of “the
sphere of intellect and spirit which it is the purpose of the
First Amendment to our Constitution to reserve from official
control.” /d. at 642. The First Amendment, declared this
Court, gives a constitutional preference for “individual
freedom of mind” over “officially disciplined uniformity for
which history indicates a disappointing and disastrous end.”
* Professor Emerson makes the same point. Situating freedom of
thought as the foundation of the First Amendment, he explains:
Forming or holding a belief occurs prior to expression. But it is
the first stage in the processes of expression, and it tends to
progress into expression. Hence safeguarding the right to form
and hold beliefs is essential in maintaining a system of
freedom of expression. Freedom of belief, therefore, must be
held included within the protection of the First Amendment.
Thomas Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION
21-22 (1970).
Id. at 637. At the center of our American freedom, is the
“freedom to be intellectually and spiritually diverse.” /d. at
641. “We can have intellectual individualism and the rich
cultural diversities that we owe to exceptional minds,” this
Court explained, “only at the price of occasional eccentricity
and abnormal attitudes.” Jd. at 641-42.
This principle, that freedom of thought is central to
the First Amendment and protected thereby, has guided other
important decisions of this Court. In Wooley v. Maynard, 430
U.S. 705 (1977), the Court invalidated a New Hampshire
statute that required all noncommercial vehicle license plates
to bear the state motto “Live Free or Die,” finding the
requirement inconsistent with “the mght of freedom of
thought protected by the First Amendment.” /d. at 714.
In Stanley v. Georgia, 394 U.S. 557 (1969), this Court
struck down a Georgia law that banned the private possession
of obscene material, finding the law “wholly inconsistent
with the philosophy of the First Amendment.” /d. at 565-66.
“Our whole constitutional heritage,” explained this Court,
“rebels at the thought of giving government the power to
contro] men’s minds.” /d. at 565.
Justice Harlan, concurring in United States v. Reidel,
402 U.S. 351 (1971), characterized the Constitutional right
protected in Stanley as “the First Amendment right of the
individual to be free from governmental programs of thought
control, however such programs might be justified in terms
of permissible state objectives,” and as the “freedom from
governmental manipulation of the content of a man’s
mind....” Jd. at 359 (Harlan J., concurring).
In Abood v. Detroit Board of Education, 431 U.S. 209
(1977), this Court invalidated a statute forcing public school
teachers to contribute money to a union that advanced
partisan political views. This Court characterized the case as
one concerning “freedom of belief’ and emphasized
“freedom of belief is no incidental or secondary aspect of the
First Amendment’s protections... [A]t the heart of the First
Amendment,” noted this Court, “is the notion that an
individual should be free to believe as he will, and that in a
free society one’s beliefs should be shaped by his mind and
his conscience rather than coerced by the State.” Jd. at 234-
35.
B. The Government’s Forcible and Direct Manipulation of a Person’s
Mental Processes Violates the First Amendment
The government is seeking to directly modify Dr.
Sell’s thoughts and thought processes by forcibly
administering antipsychotic drugs designed to manipulate the
chemistry of his brain and thereby change the way he thinks.
The forcible administration of antipsychotic medication is not
an effort to control Dr. Sell’s behavior, with merely an
incidental effect on his thinking. It is an effort aimed directly
at changing his mind and mental processes by forcibly
manipulating his brain chemistry. As such, this Court should
recognize it as a serious affront to the First Amendment’s
protection of freedom of thought.
1. This Court’s Rulings in Harper and Riggins Did Not
Address A First Amendment Claim
In 1990, and again in 1992, this Court reviewed
decisions in which defendants were medicated with
psychiatric drugs against their will. However, in neither of
those cases did the defendant raise a First Amendment
freedom of thought claim.
In Washington v. Harper 494 U.S. 210 (1990), this
Court (6-3) held that a state prisoner’s “significant liberty
interest” in refusing unwanted psychiatric drug treatment was
constitutionally protected, but was outweighed by the state’s
interest in prison security. Harper, 494 U.S. at 221, 236.
Harper was a post-conviction prisoner forced to take
antipsychotic drugs on order of the prison psychiatrist. /d at
213-18. This Court acknowledged that “[t}he forcible
injection of medication into a nonconsenting person’s body
represents a substantial interference with that person’s
liberty.” Jd. at 229. This Court held, however, that when an
inmate is dangerous to others and the treatment is in his best
interest, the Due Process Clause permits the state to treat the
inmate with antipsychotic drugs against his will. /d. at 227.
Harper is distinct from the instant case in two
important ways. First, Harper was a post-conviction prison
inmate, whereas Dr. Sell is a pretrial detainee. Harper’s status
as a prisoner, led this Court to apply the deferential “standard
of reasonableness,” which this Court has traditionally
employed to decide constitutional claims in prisons. /d. At
223-24.* Second, unlike Dr. Sell, Harper was found to
present “a danger to others,” an important fact underscored
by this Court:
[w]here an inmate's mental disability is the root cause of
the threat he poses to the inmate population, the State’s
interest in decreasing the danger to others necessarily
encompasses an interest in providing him with medical
treatment for his illness. /d. 494 U.S. at 225-26.
In Harper, this Court did not examine the possible First
Amendment implications of forced psychiatric drug
treatment. /d. at 258, n. 32 (Stevens J., concurring in part and
dissenting in part). Additionally, because the case involved a
dangerous post-conviction prisoner, rather than a
nondangerous pretrial detainee deemed incompetent to stand
trial, Harper provides background, but little guidance, for
evaluating the claim in the instant case.
In Riggins v. Nevada, 504 U.S. 127 (1992), this Court
suggested that Harper was to be read narrowly, noting that
Harper turned on “the unique circumstances of penal
confinement.” /d. at 134-135. Riggins sought to raise an
‘“(P]rison regulations. ..are judged under a ‘reasonableness’ test
less restrictive than that ordinarily applied to alleged infringements
of fundamental constitutional nghts.” O'Lone v. Estate of Shabazz,
482 U.S. 342, 349 (1987).
ee ed
insanity defense to murder charges. During his trial he was
medicated against his will with the antipsychotic drug
Mellaril® (thioridazine HCl). His defense failed and he
appealed his death sentence on the ground that the forced
drugging violated his right to due process by manipulating
his demeanor during trial and by hindering his ability to
communicate with his attorney. In a 7-2 ruling, this Court
reversed Riggins’ conviction, finding that the trial court erred
by failing to acknowledge Riggins’ liberty interest in
resisting the drugs, and by failing to examine whether any
less intrusive alternatives to forced drugging existed. /d. at
133-37.
While both Harper and Riggins declared that a person
has a “significant liberty interest” in resisting unwanted
administration of antipsychotic drugs, neither case discussed:
1) the nature of that liberty interest; 2) whether it is a
“fundamental” interest deserving of strict scrutiny; or 3)
whether it could be overcome simply on a finding that the
defendant was incompetent to stand trial. Most specifically,
in neither case was a First Amendment freedom of thought
claim presented or evaluated. As discussed in the following
section, First Amendment principles are at the nexus of this
case, and are clearly implicated when the state forcibly
administers drugs intended and designed to alter the way a
person thinks.
2. The First Amendment Right to Freedom of Thought Is
Violated when the Government Forcibly Subjects a
Person to Drugs or Other Technology for the Purpose of
Directly Altering the Person’s Thought Processes
a) Antipsychotic Drugs Manipulate the Brain With the
Intent and Effect of Manipulating Thought
In the instant case, the Eighth Circuit has held that the
state may forcibly inject a nondangerous citizen with mind-
altering antipsychotic drugs for the sole purpose of making
him competent to stand trial on fraud charges. United States
v. Sell, 282 F.3d 560 (2002). The Eighth Circuit’s decision
goes far beyond Harper or Riggins, or any other holding of
this Court, concerning the power of the state to directly
intrude into the innermost workings of a person’s mind. The
sweeping breadth of the Eighth Circuit’s decision places
freedom of thought in jeopardy, threatening the very
foundation of the First Amendment as well as basic notions
of individual freedom upon which this country was founded.
Sixty years ago this Court opined “[f]reedom to think is
absolute of its own nature; the most tyrannical government is
powerless to control the inward workings of the mind.” Jones
v. Opelika, 316 U.S. 584, 618 (1942). Since the advent of
powerful antipsychotic drugs in the 1950s (as well as other
technologies discussed in Section C2, infra), the government
now does have the capability to “control the inward workings
of the mind.” The critical question, which the instant case
frames for this Court, is whether or not the Constitution
grants the government the power to alter a person’s thinking
processes against his or her will solely in an effort to render
that person competent to stand trial. Here, the state seeks to
forcibly change the way Dr. Sell thinks, by directly
manipulating his brain chemistry.° Antipsychotic drugs, this
* The order granting the petition in this case limited the issue to
whether petitioner’s mghts under the First, Fifth, and Sixth
Amendments are violated by allowing the government to
administer antipsychotic drugs to him against his will in order to
make him competent to stand trial for nonviolent offenses. While
the CCLE’s bref is limited to articulating the First Amendment
right to freedom of thought, the CCLE observes that government
authorized forced drugging of a person with mind-altering drugs
implicates other constitutional guarantees (federal and state)
including the nght to privacy, the nights guaranteed by the Fourth,
Fifth, Sixth, Ninth, Tenth and Fourteenth Amendments, as well as
International resolutions, laws, and treaties such as the UNIVERSAL
DECLARATION OF HUMAN RICHTS, adopted by the United Nations
General Assembly. See, eg, William J. Brennan, State
Constitutions and the Protection of Individual Rights, 90 HARV. L.
10
Court has noted, are “mind altering,” and “(t)heir
effectiveness resides in their capacity to achieve such
effects.” Mills v. Rogers, 457 U.S. 291, 293 n.1 (1982).
These drugs “alter the chemical balance in a patient's brain,
leading to changes...in his or her cognitive processes.”
Harper, 494 U.S. at 229.°
REV. 389 (1977); Michael Perlin, State Constitutions and Statutes
as Sources of Rights for the Mentally Disabled: The Last
Frontier?, 20 Loy. L.A. L. REV. 1249, 1250-51 (1987); Bruce
Winnick, The Right to Refuse Mental Health Treatment, AM.
PSYCHOL. ASS’N, WASH., D.C. (1997); G.A. Res. 217, U.N.
GAOR, 3” Sess., at 71, U.N. Doc. A/810 (1948); Principles for the
Protection of Persons with Mental Iliness and for the Improvement
of Mental Health Care, G.A. Res. 119, U.N. GAOR, 46" Sess.,
Supp. No. 49, Annex, at 188-92, U.N.Doc. A/46/49 (1991).
It is obligatory that Helsinki signatory states not manipulate
the minds of their citizens; that they not step between a man
and his conscience or his God; and that they not prevent his
thoughts from finding expression through peaceful action.
Hearings on Abuse of Psychiatry in the Soviet Union before
the Subcomm. on Human Rights and Int'l Orgs. of the House
Comm. on Foreign Affairs, 98th Cong., 106 (1983) (remarks
by Max Kampelman, Chair of the U.S. Delegation, to the
Plenary Session of the Comm. on Security and Cooperation in
Europe), quoted in Harper, 494 U.S. at 238, n3 (Stevens, J.,
dissenting).
° For many people, antipsychotic drugs may provide life-enhancing
benefits. For others, the physical and mental side effects of the
drugs may be unacceptable, even dangerous. See, e.g., Harper, 494
U.S. at 229 (“While the therapeutic benefits of antipsychotic drugs
are well documented, it is also true that the drugs can have serious,
even fatal, side effects”). The medical efficacy of anti-psychotic
drugs, however, is not the issue in this case. Even in the absence of
physical and mental “side effects,” the fact remains that
antipsychotic drugs strongly affect thought processes. The First
Amendment should be read to allocate to the individual, as
opposed to the government, the final say about whether to
11
Given that alteration of thinking is both the design and
effect of antipsychotic drugs, permitting the government to
force a citizen to take such drugs outside of the narrow
context of Harper, cannot be squared with the supremely
fundamental nature of the right to freedom of thought.
By forcing a person to take a mind-altering drug
against his or her will, the government is commandeering
that person’s mind, and forcibly changing his or her very
ability to formulate particular thoughts. /n re guardianship of
Roe, 421 N.E.2d 40, 52-3 (1981), (“the impact of the
chemicals upon the brain is sufficient to undermine the
foundations of personality.”) By directly manipulating the
manner in which a person’s brain processes information and
formulates ideas, the government ipso facto manipulates and
alters both the form and content of that person’s subsequent
expression and thereby completely undermines the First
Amendment's free speech guarantee.
Thus, a government action that directly and
intentionally alters the way a person thinks by forcibly
modifying that person’s brain, directly violates the First
Amendment nght to freedom of thought. By manipulating the
way that Dr. Sell thinks, through the forcible act of
administering mind-altering drugs to him, the state commits a
type of cognitive censorship—suppressing Dr. Sell’s own
thoughts in favor of state-approved, drug-induced, “normal,”
“acceptable,” or “competent” thoughts.’ Such state action is
surely no less disfavored under the First Amendment than the
censorship of speech. A government that is permitted to
manipulate his or her own brain for the purpose of occasioning or
suppressing thoughts.
"It should be noted that antipsychotic drugs do not cure mental
illness; rather they suppress the symptoms of the illness. See
Gerald Davison & John Neale, ABNORMAL PSYCHOLOGY 305 (8th
ed. 2001).
* Professor Shapiro has outlined the core logic of this proposition
as follows:
12
manipulate a citizen’s consciousness at its very roots does not
need to censor speech, because it can prevent the ideas from
ever occurring in the mind of the speaker.” Chemical or
technological manipulation of the brain, therefore, has the
potential to become the ultimate prior restraint on speech.'”
If “at the heart of the First Amendment is the notion
that...in a free society one’s beliefs should be shaped by his
mind and his conscience rather than coerced by the State”
(Abood, 431 U.S. at 234-235), then there can be no doubt that
the government infringes on the First Amendment when
(1) The First Amendment protects communication of virtually
all kinds, whether in written, verbal, pictorial, or any symbolic
form, and whether cognitive or emotive in nature.
(2) Communication entails the transmission and reception of
whatever is communicated.
(3) Transmission and reception necessarily involves mentation
on the part of both the person transmitting and the person
receiving.
(4) It is in fact impossible to distinguish in advance mentation
that will be involved in or necessary to transmission and
reception from mentation that will not.
(5) If communication is to be protected, a// mentation
(regardless of its potential involvement in transmission or
reception) must therefore be protected. Michael Shapiro,
Legislating the Control of Behavior Control: Autonomy and
the Coercive Use of Organic Therapies, 47 S. CAL. L. REV.
237, 256 (1974).
* “If they can get you asking the wrong questions, they don’t have
to worry about the answers.” Thomas Pynchon, GRAVITY’S
RAINBOW 293 (Bantam Books 1974).
'° “ Any prior restraint on expression comes to...[the] Court with a
‘heavy presumption’ against its constitutional validity.”
Organization for a Better Austin v. Keefe, 402 U.S. 415, 419
(1971) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70
(1963)).
13
outside the narrow context of Harper it acts to alter what, or
how, a person thinks by forcibly and directly manipulating a
person’s brain.
b) Federal Courts Have Recognized a First Amendment
Violation When the Government Forces a Person to Take
Mind-Altering Drugs
Federal courts have recognized the First Amendment
freedom of thought implications of government-ordered
forced drugging with psychiatric drugs.
In Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973) a
prisoner complained that he was being forced to take the drug
succinylcholine, which he characterized as a “breath-stopping
and paralyzing ‘fright drug,’” (id. at 877) used at the time in
aversive therapy. The Ninth Circuit reversed and remanded
the case for a hearing on the prisoner’s allegations, noting
that “[p]roof of such matters could, in our judgment, raise
serious constitutional questions respecting...impermissible
tinkering with the mental processes.” /d. at 878.
In Bee v. Greaves, 744 F.2d 1387 (10" Cir. 1984), the
Tenth Circuit found that the First Amendment is implicated
when the government forcibly administers antipsychotic
drugs to pretrial detainees. In Bee, a pretrial detainee brought
suit after employees of the Salt Lake City Jail forcibly
injected him with the antipsychotic drug thorazine.
Quoting this Court, the Tenth Circuit in Bee recognized
that “liberty from bodily restraint always has been recognized
as the core of the liberty protected by the Due Process Clause
from arbitrary governmental action,”’' and reasoned that “[i]f
incarcerated individuals retain a liberty interest in freedom
from bodily restraints...then a fortiori they have a liberty
” Youngberg v. Romeo, 457 U.S. 307, 316 (1982), (quoting
Greenholtz v. Nebraska Penal Inmates, 442 US. 1, 18,
(1979) (Powell, J., concurring in part and dissenting in part)).
14
interest in freedom from physical and mental restraint of the
kind potentially imposed by antipsychotic drugs.” Bee, 744
F.2d at 1393 (emph. in orig).
Most specifically, the Tenth Circuit found that the First
Amendment is implicated when the government forcibly
administers antipsychotic drugs to a person, explaining:
The First Amendment protects the communication of _
ideas, which itself implies protection of the capacity to
produce ideas. [Citations omitted] Antipsychotic drugs
have the capacity to severely and even permanently affect
an individual’s ability to think and communicate. /d. at
1393-94.
Continuing, the Tenth Circuit in Bee observed:
“In a society whose ‘whole constitutional heritage rebels
at the thought of giving government the power to control
men’s 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.” L.
Tribe, [supra] at 899 (1978) (quoting Stanley, {supra} 394
U.S. 557, 565...). Bee, 744 F.2d at 1394.
The Tenth Circuit’s reasoning in Bee was followed by
the Sixth Circuit in a case involving a pretrial detainee whom
the government sought to forcibly drug in an effort to make
him competent to stand trial. In United States v. Brandon,
158 F.3d 947 (6" Cir. 1998) the Sixth Circuit agreed with the
Bee court that a pretrial detainee has, among other interests,
“a First Amendment interest in avoiding forced medication,
which may interfere with his ability to communicate ideas.”
Brandon, 158 F.3d at 953.
C. The Fundamental Right to Freedom of Thought Must Be Jealousty
Guarded By A Clear Bright-Line Rule
In light of the importance that this Court and federal
15
courts have placed upon the constitutional night of an
individual to freedom of thought and integrity over his or her _ -
thought processes, it is imperative that this Court strictly
circumscribe, and make unequivocally clear, the limits on the
government’s power to forcibly and directly alter the
thoughts of citizens. The absence of such an unambiguous
bright-line rule at the jurisprudential crossroads of psychiatry
and technology, exposes the very foundation of the First
Amendment to erosion, and grants “government the power to
control men’s minds.” Stanley, 394 U.S. at 565.
1. Abuse and Misapplication of Mental Diagnosis Threatens
to Undermine Freedom of Thought In the Absence of an
Unequivocal and Narrow Rule
The former Soviet Union had a First Amendment
equivalent, but it was merely an unenforced “paper” right. It
was not uncommon for Soviet psychiatrists to forcibly drug
political dissidents after labeling them “mentally ill.” See
Sidney Bloch & Peter Reddaway, PSYCHIATRIC TERROR:
How SOVIET PSYCHIATRY IS USED TO SUPPRESS DISSENT
(1977); See also James F. Clarity, A Freed Dissident Says
Soviet Doctors Sought to Break His Political Beliefs, N. Y.
TIMES, Feb. 4, 1976, at Al, 8. Similar political misuse of
psychiatry reportedly continues today in the People’s
Republic of China. See Robin Munro, Judicial Psychiatry in
China and its Political Abuses, Vol. 14, no.1 COLUM. J.
ASIAN L. 1-128 (2000); Munro, Political Psychiatry in Post
Mao China and its Origins in the Cultural Revolution, Vol.
30, n. 1 J. AM. ACAD. PSYCHIATRY & L. 97-106 (2002).
Even in the abserice of overt political abuse, this Court
has acknowledged that distinguishing “normal” thoughts
from “abnormal” or “disordered” thoughts is fraught with
peril: “the inquiry itself is elusive, for it presupposes some
baseline of normality that experts may have some difficulty
in establishing for a particular defendant, if they can establish
it at all.” Riggins, 504 US. at 141 (Kennedy, J.,
16
concurring).'* Indeed, this Court has previously recognized
that “[t]he subtleties and nuances of psychiatric diagnosis
render certainties virtually beyond reach in most situations,”
because “[p]sychiatric diagnosis . . . is to a large extent based
on medical impressions drawn from subjective analysis and
filtered through the experience of the diagnostician.” Medina
v. California, 504 U.S. 437, 451 (1992), quoting Addington v.
Texas, 441 U.S. 418, 430 (1979). “Psychiatry,” this Court has
observed, “is not...an exact science, and psychiatrists
disagree widely and frequently on what constitutes mental
illness, on the appropriate diagnosis to be attached to given
'2 Dr. Robert Spitzer, chair of the American Psychiatric
Association committees that developed two earlier versions of the
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
(DSM) (DSM—III and DSM-III-R) and special advisor to the
committee that developed the latest DSM (DSM-IV, 1994), has
acknowledged that “[t]he concept of ‘disorder’ always involves a
value judgment.” Spitzer, The Diagnostic Status of Homosexuality
in DSM-III: A Reformulation of the Issues, 138 AM. J.
PSYCHIATRY 210, 214 (1981). For example, until 1972 the DSM
defined homosexuality as a mental disorder. “Treatment,” in
addition to counseling, included penile plethysmograph shocks
(electronic shock triggered by penile erection), drugging, and
hypnosis. See N. McConaghy, Subjective and Penile
Plethysmograph Responses Following Aversion-Relief and
Apomorphine Aversion Therapy for Homosexual Impulses, 115
Brit. J. PSYCHIATRY 723-730 (1969); B. James & D. Early,
Aversion Therapy for Homosexuality, | BRIT. MED. J. 538 (1963);
M. Feldman & M. MacCulloch, A Systematic Approach to the
Treatment of Homosexuality by Conditioned Aversion: Preliminary
Report, 121 AM. J. PSYCHIATRY 167-171 (1964); E. Callahan & H.
Leitenberg, Aversion Therapy for Sexual Deviation: Contingent
Shock and Covert Sensitization, 8\ J. ABNORMAL PSYCHOL. 60-73
(1973).
In 1973, following intense debate within the American
Psychiatric Association, the diagnostic disorder category of
“homosexual” was removed from the DSM. Spitzer, supra, at 214.
17
behavior and symptoms, on cure and treatment....” Ake v.
Oklahoma, 470 U.S. 68, 81 (1985); See also Ennis &
Litwack, Psychiatry and the Presumption of Expertise:
Flipping Coins in the Courtroom, 62 CAL. L. REV. 693, 697-
708, 729-32 (1974).
In light of the difficulties inherent in categorizing and
diagnosing “disordered” thought, the government’s power to
“correct a person’s thinking by manipulating the person’s
brain against his or her will, must be strictly and
unambiguously limited.
2. Technological Developments Threaten to Undermine
Freedom of Thought in the Absence of an Unequivocal and
Narrow Rule
Vigorous protection of freedom of thought is
particularly important today, given major advances in
technology and pharmacology. Pharmaceutical companies
are increasingly interested in the development and marketing
of new drugs aimed at modulating consciousness by
modifying brain chemistry. The sale of Prozac® and similar
antidepressant drugs is currently one of the most profitable
segments of the pharmaceutical drug industry.'’ Sales of
“antipsychotic” drugs are currently the eighth largest therapy
class of drugs with worldwide sales of $6 billion in the year
2000, a 22 percent increase in sales over the previous year.'*
'> According to IMS Health, a fifty-year-old company specializing
in pharmaceutical market intelligence and analyses,
“antidepressants, the #3-ranked therapy class worldwide,
experienced 18 percent sales growth in 2000, to $13.4 billion or
4.2 percent of all audited giobal pharmaceutical sales.” IMS
Health, Antidepressants (summary online
<http://www.imshealth.com/public/structure/navcontent/1,3272,10
34-1034-0,00.htmI>).
'* See IMS Health, Antipsychotics (summary online
<http://www.imshealth.com/public/structure/navcontent/ 1 ,3272,10
35-1035-0,00.html>). A report published by the Lewin Group in
18
Machines such as brain imagers, brain monitors, and new
biological interventions are rapidly increasing our knowledge
of how the brain works, while simultaneously increasing the
ability to monitor and/or alter its workings in both gross and
subtle ways.’ The development of such drugs and
January 2000, found that within the Medicaid program alone,
“Antidepressant prescriptions totaled 19 million in 1998...[and]
[a]ntipsychotic prescriptions totaled 11 million in 1998.” Lewin
Group, Access and Utilization of New Antidepressant and
Antipsychotic Medications (Jan. 2000).
'° Aside from growing applications of available brain scan devices
including: functional magnetic resonance imaging f(MRI), positron
emission tomography (PET), electroencephalographic monitoring
(EEG); developments in fields related to nanotechnology point to
possibilities for _minute-scaled (physical, chemical,
thermodynamic, mechanical, and biological) devices deployed in
the body that would be capable of closer monitoring, intervention
and manipulation. See Robert Freitas. NANOMEDICINE VOLUME |:
BASIC CAPABILITIES (1999), which methodically describes the
capabilities of molecular machine systems that may be required by
many, if not most, medical nanorobotic devices. These include: the
abilities to recognize, sort, and transport important molecules;
sense the environment; alter shape or surface texture; generate
onboard energy to power effective robotic functions; communicate
with doctors, patients, and other nanorobots; navigate throughout
the human body; manipulate microscopic objects and move about
inside a human body; timekeep, perform computations, and disable
living cells and viruses. In Chapter One, Freitas writes “... most of
us suppose that we are endowed with free will. But if choices by
free will are simply the resolution of conflicts of neurological
subsystems, and we become consciously aware of those
subsystems and are able to intervene in their processes, do we run
the risk of runaway instabilities at the deepest levels of what we
presently call our ‘minds’? Will we find that these instabilities are
profound counterparts to the maladies we currently designate as
epilepsy, or psychosomatic illnesses? In any redesigns of our
brains which would involve opening doors to, quite literally, the
ultrastructure of our thoughts, we could become ‘naked to
ourselves’ in ways that we can only vaguely speculate about at
19
technologies is to be applauded for their potential to aid
millions of suffering Americans who voluntarily use them.
But the instant case raises the dark prospect of the
government forcibly employing existing and new
technologies to overly or covertly alter the way that the
populace, or individual citizens, think.'®
As cautioned by Professor Winnick, “...a vast array of
treatment technologies now exist that enable government for
the first time to intrude directly and powerfully into an
individual’s mental processes and therefore pose a potential
for abuse that cannot be ignored.” Winnick, supra, at 8.
“Advances in the psychic and related sciences,”
conjectured Justice Brandies 75 years ago, “may bring means
of exploring unexpressed beliefs, thoughts and emotions.”
Olmstead v. United States, 277 U.S. 438, 474 (1928)
(Brandeis, J., dissenting opinion). Technological progress is
indeed turning “mind control” fiction into fact, with the
possibility that neurochemical drugs or other technology
present. Along with any other dangers we might encounter, this
will raise entirely new issues of the proper role of psychotherapy
and the sanctity of personal privacy.” NANOMEDICINE, supra,
Volume 1: Chapter 1.2 Current Medical Practice, § 1.2.5
“Changing View of the Human Body.”
'® Already, for example, at least one public school has reportedly
mandated drugging a student with Dextrostat, (a version of
Ritalin®) and Paxil,” in order to attend school. See Douglas
Montero, / Was Told To Dope My Kid, N. Y. POST, Aug. 7, 2002;
Karen Thomas, Parents pressured to put kids on Ritalin: N_Y.
court orders use of medicine, USA TODAY, Aug. 8, 2000 (“An
Albany, N.Y. couple put their 7-year-old son back on Ritalin after
a family court ruled that they must continue medicating him for
ADD.”). See also Lehtinen, Technological Incapacitation: A
Neglected Alternative, 2 Q. J. CORRECTIONS 31, 35-36 (1978)
(Suggesting sub-dermal implanting of long-acting tranquilizers as
an alternative to incarceration).
20
could be deployed as tools of individual and social control.'’
Already in use, and undergoing further development, is a
“brain fingerprinting” machine, a brainwave-measuring
device intended for law enforcement use. See United States
General Accounting Office, /nvestigative Techniques:
'’ The 20" century imagination is peppered with ruminations on
the coercive potential of electronic and chemical technologies.
Variations on theme form the basis for countless dystopian novels,
most notably NINETEEN EIGHTY-FOUR. (“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”). George Orwell, NINETEEN EIGHTY-FOUR
46 (Harcourt, Brace 1949); see also, id., Appendix “The Principles
of Newspeak;” A psychoactive drug named “Soma” controls
citizens’ behavior in the novel BRAVE NEW WORLD. Aldous
Huxley, BRAVE NEW WORLD, (Doubleday 1932); In A
CLOCKWORK ORANGE, the protagonist, Alex, is conditioned into a
docile model citizen through aversion therapy. Anthony Burgess,
A CLOCKWORK ORANGE, (W. W. Norton 1963); In THE
TERMINAL MAN, a man’s violent tendencies are controlled by
implanting electrodes into his brain. Michael Crichton, THE
TERMINAL MAN, (Knopf 1972); In THIS PERFECT DAY inhabitants
are genetically engineered and drugged daily into a calm state of
mind. Ira Levin, THIS PERFECT DAY, (Random House 1970); In
WOMAN ON THE EDGE OF TIME, the heroine is incarcerated in a
mental hospital and subjected to a panoply of forced-drugs and is
subjected to electrode implantation in the brain. Marge Piercy,
(Knopf 1976); In SYNNERS, socket nanotechnology allows
imperceptibly small brain implants to directly interface with a
readily available cybernetic information network. Pat Cadigan,
SYNNERS, (Bantam Spectra 1991); In MINDPLAYERS, mind-to-
mind technology works by infusing a chemical bath of sedatives to
the brain, then engaging skull caps connected directly to neurons.
For the central character, this experience has the effect of
“producing a change in brain chemistry that felt as natural as
changing your mind” Pat Cadigan, MINDPLAYERS 4, (Bantam
Books 1987); See generally Kenneth Melvin, Stanley Brodsky and
Raymond Fowler, Jr., eds. PSY-Fi ONE: AN ANTHOLOGY OF
PSYCHOLOGY IN SCIENCE FICTION (1st ed.: Random House, 1977).
21
Federal Agency Views on the Potential Application of “Brain
Fingerprinting.” REPORT GAO-02-22, (Oct. 2001).
Dr. John D. Norseen, systems scientist for Lockheed
Martin, has been quoted as saying “(w]e are at the point
where... we can use a single electrode or something like an
airport security system where there is a dome above your
head to get enough information that we can know the number
you’re thinking.” Sharon Berry, Decoding Minds, Foiling
Adversaries, SIGNAL MAG., (Oct. 2001)."*
The Department of Defense’s Joint Non-Lethal
Weapons Directorate (JNLWD) is exploring the use of
various pharmaceutical psychoactive “calmative” agents in a
number of contexts, including civilian crowd control by
blanket sedation.'? An October 2000 JNLWD report, notes
that potential “use environments” for calmative drugs include
“a group of hungry refugees that are excited over the
distribution of food and unwilling to wait patiently,” an
“agitated population” and “riot and/or hostage situations.” /d.
at 3, 10. Examples of more tailored means of calmative drug
distribution described in the report include “application to
'* Signal Magazine is the Armed Forces Communications and
Electronics Association’s “Journal for Communications,
Electronics, Intelligence, and Information Systems Professionals.”
'* See Joan Lakoski, W. Murray, John Kenny, The Advantages and
Limitations of Calmatives for Use as a Non-Lethal Technique, U.
Pa, (Oct. 3, 2000) (report obtained by the Sunshine Project
<http://www.sunshine-project.org> under a FOIA Request,)
(“There are numerous pharmaceutical agents with a profile of
producing a calm-like behavioral state currently available in
clinical practice. Moreover, wide arrays of new compounds with
unique cellular and molecular mechanisms are under development
by the pharmaceutical industry for their ability to produce calm
and tranquil-like states of behavior. Therefore, this report serves
as an essential first step in identification of calmative
pharmaceutical agents with potential utility as non-lethal
techniques”). /d. at 6.
22
drinking water, topical administration to the skin, an aerosol
spray inhalation route, or a drug-filled rubber bullet.” /d. at
10.
As this Court noted in 1985, the U.S. government has,
in the past, crossed ethical and legal lines by administering
psychoactive drugs on unwitting civilians. See CIA v. Sims,
471 U.S. 159 (1985) (“Several MKULTRA subprojects
involved experiments where researchers surreptitiously
administered dangerous drugs, such as LSD, to unwitting
human subjects. At least two persons died as a result of
MKULTRA experiments, and others may have suffered
impaired health because of the testing.”).”°
Recently, this Court observed with respect to the
Fourth Amendment, that “{i]t would be foolish to contend
that the degree of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected by the advance of
technology.... The question...is what limits there are upon
this power of technology to shrink the realm of guaranteed
privacy.” Kyllo v. United States 533 U.S. 27, 34 (2001).
When that same question is asked about technological
developments like those discussed in this section, the First
Amendment guarantee of freedom of thought demands an
answer by this Court that establishes unequivocal limits on
the government’s power to invade the inner workings of a
*° See also Final Report of the Select Comm. to Study Gov't
Operations with Respect to Intelligence Activities, S. Rep. No. 94-
755, Book I, (1976); Report to the President by the Comm'n on
CIA Activities Within the United States 226-228 (June 1975);
Project MKULTRA, the CIA's Program of Research in Behavioral
Modification: Joint Hearings before the Select Comm. on
Intelligence and the Subcomm. on Health and Scientific Research
of the Senate Comm. on Human Resources, 95th Cong., |st Sess.
(1977); Human Drug Testing by the CIA, 1977: Hearings on S.
1893 before the Subcomm. on Health and Scientific Research of
the Senate Comm. on Human Resources, 95th Cong., |st Sess.
(1977).
23
person’s mind.
D. Violating a Person’s Fundamental Right to Freedom of Thought
Solely to Advance the Government's Interest in Adjudicating
Crimes Does Not Withstand Strict Scrutiny
To infringe on a fundamental right such as the First
Amendment right to freedom of thought, the government
must justify its action by no less a standard than strict
scrutiny. See N.A.A.C.P. v. Button, 371 U.S. 415, 438 (1963)
(“The decisions of this Court have consistently held that only
a compelling state interest...can justify limiting First
Amendment freedoms.”); Brandon, 158 F.3d at 957 (“[T]o
forcibly medicate [a non-dangerous pretrial detainee] the
government must satisfy strict scrutiny review and
demonstrate that its proposed approach is narrowly tailored
to a compelling interest.”’).
1. The Government's Interest in Adjudicating Crimes Is,
Standing Alone, Insufficenthy Compelling to Justify Forcible
Alteration of a Defendant’s Thought Processes
To survive strict scrutiny, the governmental interest
advanced “must be paramount, one of vital importance, and
the burden is on the government to show the existence of
such an interest.” Elrod v. Burns, 427 U.S. 347, 362 (1976).
Here, the sole interest asserted by the state is its “interest in
bringing a defendant to trial.” Sel/, 283 F.3d at 568. While
this is undeniably a /egitimate governmental interest, the
CCLE submits that it is insufficiently compelling, by itself, to
override a person’s First Amendment right to freedom of
thought.
This Court should reject the Eighth Circuit’s assertion
that some charges are sufficiently “serious” to justify forced
drugging with antipsychotics. Se//, 282 F.3d at 568. The
CCLE submits that a bare determination of a defendant’s
incompetence to stand trial, regardless of the “seriousness” of
the offense, may not, standing alone, serve as the overriding
24
justification for the state directly intruding into a person’s
brain and manipulating how he or she thinks. To permit such
an important First Amendment right to turn on how various
courts characterize the “seriousness” of offenses would invite
confusion and inconsistent application of the law. One need
only look at the Eighth Circuit’s perfunctory conclusion that
fraud and money laundering (nonviolent economic crimes),
are “serious” enough to justify drugging Dr. Sell, to clearly
glimpse how important it is for this Court to unequivocally
state that a finding of incompetence to stand trial is, alone,
insufficient to justify the government in _ forcibly
administering mind-altering drugs to a defendant.
In the instant case, the Eighth Circuit affirmed that Dr.
Sell is not a danger to himself or others. Se//, 283 F.3d at 565.
(“Upon review, we agree that the evidence does not support a
finding that Sell posed a danger to himself or others at the
Medical Center”). Dr. Sell has merely been found
incompetent to stand trial. The test for determining
competence to stand trial is whether the defendant “has
sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether ie
has a rational as well as factual understanding of the
proceedings against him.” Dusky v. United States, 362 U.S.
402, 402 (1960). Professor Winnick has suggested that the
test for competency to stand trial should not be conflated
with the test of competency to make medical treatment
decisions, explaining: “at least some and perhaps many
defendants found incompetent to stand trial are competent to
make medical treatment decisions, it would [therefore] seem
unconstitutional conclusively to presume that all defendants
found incompetent to stand trial are also incompetent [to
make their own medical decisions].” Winnick, supra, at 294,
n.165.
Indeed this Court has recognized, “commitment and
competency proceedings address entirely different
substantive issues.” Cooper v. Oklahoma, 517 U.S. 348, 368
(1996). Dr. Sell has not been found to be incompetent to
25
make his own medical decisions. In order to civilly commit a
person, and thereby substitute the state’s authority in
treatment decisions for the person’s own authority, this Court
previously emphasized:
...due process requires at a minimum a showing that
the person is menially ill and either poses a danger to
himself or others or is incapable of “surviving safely in
freedom,” id., at 573-576. The test for competence to
stand trial, by contrast, is whether the defendant has the
present ability to understand the charges against him
and communicate effectively with defense counsel.
Cooper, 517 U.S. at 368.
Accordingly, simply because Dr. Sell has been
declared incompetent to stand trial, the state must not, ipso
facto, be handed the enormous power of reworking his brain
and “correcting” his thoughts. A clear rule that the First
Amendment prohibits the government from altering the way
a person thinks merely because that person has been declared
incompetent to stand trial, also comports with principles of
fundamental fairness and other constitutional guarantees. As
Justice Kennedy noted in his concurring opinion in Riggins:
[c]ompetence to stand trial is rudimentary, for upon it
depends the main part of those nghts deemed essential to
a fair tnal, including the nght to effective assistance of
counsel, the nghts to summon, to confront, and to cross
examine witnesses, and the night to testify on one’s own
behalf or to remain silent without penalty for doing so.
Riggins 504 U.S. at 139-140.
Justice Kennedy’s comments underscore that the
government's interest is not merely to bring defendants to
trial, but to conduct a fair and just trial. See Brecht v.
Abrahamson, 507 U.S. 619, 652 (1993) (O’Connor, J.,
dissenting) (“[T]he central goal of the criminal justice
system...[is the] accurate determination of guilt and
innocence”); Estes v. Texas, 381 U.S. 532, 542-43 (1965)
26
(“The criminal trial under our Constitution has a clearly
defined purpose, to provide a fair and reliable determination
of guilt, and no procedure or occurrence which seriously
threatens to divert it from that purpose can be tolerated.”)
“The Constitution,” this Court has explained, “recognizes an
adversary system as the proper method of determining guilt,
and the Government, as a litigant, has a legitimate interest in
seeing that cases in which it believes a conviction is
warranted are tried before the tribunal which the Constitution
regards as most likely to produce a fair result.” Singer v.
United States, 380 U.S. 24, 36 (1965).
It is precisely because our criminal justice system is
adversarial, and because the Constitution demands a fair
trial, that the government’s “legitimate interest in seeing that
cases...are tried,” must not be found to encompass the power
to forcibly drug its adversaries into “competence.” Indeed,
the Eighth Circuit’s ruling turns “competence to stand trial”
into a weapon against the defendant, by transforming it into a
gruesome test that the defendant must pass in order to escape
having his mental processes forcibly manipulated by the
state. This turns the principles underlying the rule on their
head. What pretrial detainee will feel safe raising the issue of
trial competence when the result could well be a forced
injection of mind-altering drugs?
Further, drugging a defendant with antipsychotics or
other psychoactive drugs will likely affect the person’s
demeanor at trial and/or his or her testimony. As Justice
Kennedy noted in his concurring opinion in Riggins:
The avowed purpose of [antipsychotic] medication is not
functional competence, but competence to stand trial. In
my view, elementary protections against state intrusion
require the State, in every case, to make a showing that
there is no significant risk that the medication will impair
or alter in any material way the defendant’s capacity or
willingness to react to the testimony at trial or to assist his
counsel. Based on my understanding of the medical
literature, I have substantial reservations that the State can
27
make that showing. Riggins, 504 U.S. at 140 (Kennedy,
J., concurring).
This position was earlier expressed by the Tenth Circuit
in Bee. There, the Tenth Circuit applied strict scrutiny after
finding that a pretrial detainee has a constitutionally
protected liberty interest in avoiding antipsychotic drugs.
Bee, 744 Fd.3. at 1394. While remanding the case for further
proceedings because the trial court granted the government’s
motion for summary judgment without a sufficient hearing,
the Tenth Circuit expressed extreme skepticism that the
government’s interest in bringing a defendant to trial could
ever be a sufficiently compelling reason to drug a detainee
against his will:
...although the state undoubtedly has an interest in
bringing to trial those accused of a crime, we question
whether this interest could ever be deemed sufficiently
compelling to outweigh a criminal defendant's interest in
not being forcibly medicated with antipsychotic drugs.
With their potentially dangerous side effects, such drugs
may not be administered lightly. Generally speaking, a
decision to administer antipsychotics should be based on
the legitimate treatment needs of the individual, in
accordance with accepted medical practice. A state
interest unrelated to the well-being of the individual or
those around him simply has no relevance to such a
determination. The needs of the individual, not the
requirements of the prosecutor, must be paramount where
the use of antipsychotic drugs is concerned. /d. at 1395
(emph. added).
2 There Are Less Intrusive Means To Advance the
Goverument’s Interest
Under strict scrutiny analysis, the government’s
infringement on a fundamental mght must be “narrowly
tailored” or “no greater than necessary or essential””* to
*' Florida Star v. B.J.F., 491 U.S. 524, 541 (1989); Miller v.
28
protect the governmental interest at stake.
[E]ven though the governmental purpose be legitimate
and substantial, that purpose cannot be pursued by means
that broadly stifle fundamental liberties when the end can
be more narrowly achieved. Shelton v. Tucker, 364 U.S.
479, 488 (1960).
As the CCLE reads the record, far less intrusive
therapies, such as psychotherapy, psychoanalysis, counseling,
group therapy, and a panoply of behavior therapies have yet
to be tned in the instant case. Sell, 282 F.3d at 563-64.
Psychoanalytical treatments are non-invasive, and do not
directly alter the electro-chemical status of the brain. They
have virtually no side effects, nor do they run the risk of
chemically altering Dr. Sell’s demeanor at trial or of
hindering his ability to communicate with counsel or the jury.
Thus, they present a far less intrusive means of advancing the
state’s interest than does the forcible administration of mind-
altering drugs.
Finally, if this Court upholds Dr. Sell’s fundamental
night to fréedom of thought against government efforts to
forcibly drug him into competence, the result will not be to
grant him his freedom. Rather, both federal and state laws
provide long-standing and comprehensive procedures for
dealing with defendants who are found incompetent to stand
tnal. See R. Roesch & S. Golding, Competency To Stand
Trial (1980) 48-49; 18 U.S.C. §§ 4241-4248; Greenwood v.
United States, 350 U.S. 366, 373 (1956) (“[T]}he bill
{enacting 18 U.S.C. 4241 et seqg.] was proposed by the
Judicial Conference of the United States after long study by a
conspicuously able committee, followed by consultation with
Johnson, 515 U.S. 900, 920 (1995) (“To satisfy strict scrutiny, the
State must demonstrate that its...legislation is narrowly tailored to
serving a compelling governmental interest’). ©
*? Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984) (quoting
Procunier v. Martinez, 416 U.S. 396, 413 (1974)).
29
federal istrict and _ circuit judges...[and] deals
comprehensively with those persons charged with federal
crime who are insane or mentally incompetent to stand
trial”); Riggins, 504 U.S. at 145 (Kennedy, J., concurring)
(“If the State cannot render the defendant competent without
involuntary medicine, then it must resort to civil
commitment, if appropriate, unless the defendant becomes
competent through other means”); Jackson v. Indiana, 406
U.S. 715, 738 (1972) (noting that if a detainee is not
competent to stand trial, the government may “institute the
customary civil commitment proceeding that would be
required to commit indefinitely any other citizen’). These
existing systems protect society while also protecting the best
medical interest of the individual. Following these
established procedures protects the mght to freedom of
thought as well as the state’s interest in adjudicating crimes.
As this Court observed nearly 100 years ago:
There is...a sphere within which the individual may assert
the supremacy of his own will and rightfully dispute the
authority of any human government, especially of any
free government existing under a written constitution, to
interfere with the exercise of that will. Jacobson v.
Massachusetts, 197 U.S. 11, 29 (1905).
A person’s intellect is surely within that protected
sphere. The mght of a person to liberty, autonomy and
privacy over his or her own thought processes is situated at
the core of what it means to be a free person. It is essential to
the most elementary concepts of human freedom, dignity,
and self-expression, and demands this Court’s steadfast
protection. The right to sovereignty over one’s own thought
processes is the quintessence of freedom, and is protected by
the First Amendment.
CONCLUSION
For the foregoing reasons, amicus curiae respectfully
urges the Court to reverse the decision of the Eighth Circuit.
30
Respectfully submitted,
RICHARD GLEN BOIRE
(Counsel of Record)
Center for Cognitive
Liberty & Ethics
Court & Cedar Building
231 G. Street, Suite 7
Davis, CA 95616
(530) 750-7912
31
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.