Jeremy Kessler (Columbia University – Law School) & David Pozen (Columbia University – Law School) have posted Epistemic Discovery, Psychedelic Drugs, and the First Amendment (Cornell Law Review, Vol. 111, forthcoming) on SSRN. Here is the abstract:
In recent years, the concept of cognitive liberty has drawn support from scholars and activists worldwide. Proponents of cognitive liberty depict it as extending the right of free thought to encompass a right to “change our brains,” including through the use of psychedelic drugs such as psilocybin, mescaline, and LSD. Psychedelics, according to countless testimonials, can be doors of perception leading onto new mental landscapes. Prohibitions on psychedelics are said to infringe the cognitive liberty to open those doors.
This argument helps to illuminate a constitutional blind spot, but its own legal prospects are dim. In place of cognitive liberty, we propose epistemic discovery as a more promising way to conceptualize the First Amendment interests at stake in policies that indirectly constrain mental freedom. Epistemic discovery refers to the social and material processes through which humans gain and share knowledge—a pursuit at the heart of modern free speech law. Whereas cognitive liberty would seem to protect almost any choice to seek a mind-altering experience, no matter how stupefying or stimulating, epistemic discovery allows for more nuanced distinctions. And whereas cognitive liberty claims do not fit into any established doctrinal framework, epistemic discovery claims could be adjudicated under familiar tests for content-neutral regulations that burden the acquisition or dissemination of information. Focusing on psychedelics but also touching upon artificial intelligence, digital platforms, and a host of other examples, this Symposium Essay contends that epistemic discovery deserves a central place in First Amendment theory and advocacy.
Highly recommended.