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Freedom of Thought in the Age of Neuroscience

January 2014
Archiv fur Rechts- und Sozialphilosophie 100(1):1-25

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University of Hamburg

Freedom of thought is a fundamental human right, enshrined in many human rights treaties. It might very well be the only human right without any practical application. The paper reconstructs scope and meaning of this forgotten right and proposes four principles for its interpretation. In the age of neuroscientific insights and interventions into mind and brain that afford to alter thoughts, the time for the law to de fine freedom of thought in a way that lives up to its theoretical significance has come.

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Jan Christoph Bublitz, Hamburg

Freedom of Thought in the Age

of Neuroscience

A Plea and a Proposal for the Renaissance of a Forgotten

Fundamental Right

ABSTRACT: Freedom of thought is a fundamental human right, enshrined in many human

rights treaties. It might very well be the only human right without any practical application.

The paper reconstructs scope and meaning of this forgotten right and proposes four prin-

ciples for its interpretation. In the age of neuroscientiﬁ c insights and interventions into mind

and brain that afford to alter thoughts, the time for the law to deﬁ ne freedom of thought in

a way that lives up to its theoretical signiﬁ cance has come.

Along with its sister rights, freedom of religion and conscience, freedom of thought is

one of the strongest human rights, enshrined in almost every human rights treaty.1 The

European Court of Human Rights (ECtHR) considers it “the foundation of democratic

society”.2 Some of the drafters of the Universal Declaration of Human Rights (UDHR)

called it “the basis and origin of all other rights” of “metaphysical signiﬁ cance”.3 This

importance ﬁ nds its expression in its absolute nature. Neither the UDHR, nor the

ECHR provide limitation clauses, they do “not permit any violation whatsoever on the

freedom of thought.”4 In some contrast to its signiﬁ cance stands the lack of its practical

relevance. Apparently, freedom of thought is not often interfered with. In the following,

I shall cast some doubts on this widely held assumption by sketching several practical

cases that prima facie conﬂ ict with it and suggest four principles to interpret the right

in a way that lives up to its importance.

1 Art. 18 Universal Declaration of Human Rights, UDHR; Art. 18 International Covenant on Civil and

Political Rights, ICCRP; Art. 9 European Convention on Human Rights, ECHR; Art. 10 Charter of

Fundamental Freedoms of the EU.

2 Nolan v. Russia (App. 2512/04) Jud. 12 Feb. 2009, para 61; Kokkinakis v. Greece (App. 14307/88)

Jud. 25 May 1993, para 31.

3 So the words of Rene Cassin, France, as reported in Martin Scheinin, Art. 18, in: A. Eide et al. (eds.)

UDHR: A Commentary. Scandinavian University Press 1992, 266.

4 Human Rights Committee, General Comment No. 22, 30.07.1993

ARSP

Archiv für Rechts- und Sozialphilosophie

Archives for Philosophy of Law and Social Philosophy

Archives de Philosophie du Droit et de Philosophie Sociale

Archivo de Filosofía Jurídica y Social

ARSP Band 100 • Heft 1 • 2014

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I. The right de lege lata

I.1. Content and Scope of the Right

What is the content of the right – what falls under its ambit, which measures interfere

with it? As an initial observation, one can diagnose that its supreme value seems to be

indeed more of metaphysical rather than practical nature. To my knowledge, freedom

of thought has never played any decisive role in jurisprudence or litigation. Presum-

ably, it is the only human right without any practical application – yet.5 Moreover, it has

not elicited much writing in legal scholarship. No monograph is devoted to it, not even

commentaries provide much assistance for interpretation.6

Let us take a look at Art. 9 ECHR.7 It draws a structural distinction between the in-

ner and the outer. The inner sides, the fora interna of thought, religion and conscience,

“largely exercised inside an individual’s heart and mind”,8 fall under Art. 9–1 and

enjoy absolute protection. By contrast, external manifestations of beliefs are subject

to the limitation clause of Art. 9–2.9 No similar provision restricts the manifestation of

thoughts. Yet, thoughts can only be manifested through actions, ﬁ rst and foremost,

through speech and expression, which fall under separate provisions subject to special

restrictions, e. g. Art. 10.10

It is widely accepted, at least often reiterated, that the forum internum is protected

unconditionally,11 but it is less clear what this inviolable sphere comprises. Obviously, it

is a metaphorical place. In a ﬁ rst approximation, it refers to the inner world of the person,

her psychological landscape and the mental processes that are involved in thinking,

forming and revising opinions, ideas and beliefs. The object of protection – thought –,

familiar as it appears, is nowhere made more explicit. This raises the question whether

the right protects all kinds of mental states, e. g. emotions and dreams, or whether it is

restricted to mental phenomena that qualify as “thoughts” in a stricter sense.

In one of the rare cases in which freedom of thought played a (peripheral) role, the

ECtHR held that due to the “comprehensiveness of the concept of thought”, even trivial

things such as the name parents wish to give to their child constitute “thought” in the

sense of Art. 9.12 This decision also conﬁ rms that the scope of the right is not conﬁ ned

to speciﬁ c beliefs of religious or conscientious nature, but, in line with the wording,

5 This corresponds to the „longstanding charge” that the ECtHR has interpreted Art. 9 too restrictively,

D. Harris/M. O’Boyle/C. Warbrick, Law of the European Convention on Human Rights, 2nd Ed. Oxford

University Press 2009, 441.

6 The best-although limited-discussions of scope and meaning of freedom of thought can be found in

writings on the religious forum internum, e. g. Paul Taylor, Freedom of Religion, Cambridge University

Press 2005, Chapters 3–5.

7 I conﬁ ne present discussion to Art. 9 ECHR, but as the wording of the right is identical in most trea-

ties, the following should equally apply to them.

8 Harris et al. (Fn. 5), 428

9 “Belief” in Art. 9 does not denote a single belief, i. e. an opinion or an idea, but only sets of beliefs

that attain a “certain level of cogency, seriousness, cohesion and importance”; Campbell v. UK (App.

7511/76; 7743/76), Jud. 25 Feb. 1982, para. 36. Cf. Harris et al. (Fn. 5), 427. In the following, I some-

times speak of beliefs in the broader ordinary sense, the meaning should become clear from context.

10 The drafters of the ICCPR understood the relation between freedom of thought and expression in

this way, L. Hammer, The International Right to Freedom of Conscience, Ashgate 2001, 40 ff.; also

Harris et al. (Fn. 5), 427.

11 E. g. Darby v. Sweden (App. 11581/85) Report of the Com. 9 May 1989, para. 44

12 Salonen v. Finland (App. 27868/95), Dec. 2 July 1997

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encompasses thoughts and thought “comprehensively”.13 In the sparse literature that

deals with freedom of thought apart from religion and conscience as a matter in its

own right, it is suggested that the “inner freedom” of Art. 9 encompasses the “freedom

to entertain any thought [or] moral conviction”.14 The foundational idea behind Art. 9 is

“that the inner world of the person lies outside the jurisdiction of the state”.15 Together,

the terms “thought”, “conscience” and “religion”, so it is said in regard to Art. 18 UDHR,

“cover all possible attitudes of the individual towards world and society”; they protect

the “absolute character of the freedom of an inner state of mind”.16 The scope of Art.

18 ICCPR is deﬁ ned as “the right to develop autonomously thoughts and conscience

free from impermissible external inﬂ uence”.17

In addition, we ﬁ nd some examples of interferences: Although “it is true that thoughts

and views are intangible, [this] does not render the (inner) freedom of thought use-

less”. It guarantees that “one cannot be subjected to treatment intended to change the

process of thinking (‘brainwashing’), that any form of compulsion to express thoughts

[or] to change an opinion … is prohibited, and that no sanction may be imposed on

the holding of a view”.18 Art. 9 prohibits “indoctrination”19 and Art. 18 ICCPR “inﬂ uenc-

ing of the conscious or subconscious mind with psychoactive drugs or other means

of manipulation”.20

Even though indoctrination and brainwashing are themselves rather imprecise and

metaphorical terms,21 they provide a rough picture of violations: Intensive manipula-

tions and interventions into other persons’ minds that aim at altering thoughts, opinions

and ideas. Furthermore, indoctrination suggests that illegitimate interventions do not

need to consist in one forceful attack on the mind, but can be softer, so that a political

and social landscape in which speciﬁ c thoughts or opinions are suppressed sufﬁ ces

to interfere with Art. 9. Beyond these rather broad statements, there is no substantive

work on or a deﬁ nition of the right to freedom of thought. Paul Taylor concludes with

respect to religious liberty: “A survey of European and United Nations jurisprudence

does not reﬂ ect a coherent pattern of protection for the forum internum“”.22 This is even

truer for freedom of thought. Courts and scholars seem quite assured that there is no

necessity for further elaboration, probably because thoughts are deemed factually in-

tangible and beyond the reach of controlling interventions (with some rare exceptions

such as indoctrination and brainwashing).

13 One might get the impression that the right only captures religious and conscientious beliefs, primar-

ily because of a lack of comments dealing with other interferences and any further investigation of

this point.

14 Ben Vermeulen, Art. 9, in: P. van Dijk/F. van Hoof/A. van Rijn/L. Zwaak (eds.): Theory and Practice

of the European Convention on Human Rights, 4th Ed., Intersentia Press 2006, 752

15 Harris et al. (Fn. 5), 428

16 Scheinin (Fn. 3), 264/266

17 M. Nowak, CCPR Commentary. 2nd Ed., Engel 2005, 412

18 Both quotes from Vermeulen (Fn. 14), 752

19 Vermeulen (Fn. 14), 751 ff. R. Clayton/H. Thomlinson, The Law of Human Rights. Vol. 1. Oxford Uni-

versity Press 2000, 976. Harris et al. (Fn. 5), 429; Jochen Frowein in: J. Frowein/W. Peukert (eds.)

EMRK-Kommentar 3rd Ed., Engel 2009, 319

20 Nowak (Fn. 17), 413

21 The notion of “brainwashing” has led to a bitter controversy in the social sciences, especially with

respect to new religious movements, e. g. Benjamin Zablocki, The Blacklisting of a concept. Religio

1997, 96–121; cf. also Kathleen Taylor, Brainwashing: The science of thought control, Oxford Uni-

versity Press 2006.

22 Taylor (Fn. 6), 118

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I.2. Speech and Thought

Free thought is intimately linked with free speech. Outside of legal discourse, both are

often conceived as the same and the terms used interchangeably. John Stuart Mill

famously declared that liberty

“comprises, ﬁ rst, the inward domain of consciousness; demanding liberty of conscience

[and] thought [and] absolute freedom of opinion. The liberty of expressing and publishing

opinions may seem to fall under a different principle, since it belongs to that part of the

conduct of an individual which concerns other people; but, being almost of as much im-

portance as the liberty of thought itself, and resting in great part on the same reasons, is

practically inseparable from it.”23

And the historian of ideas John Bury wrote:

“A man can never be hindered from thinking whatever he chooses so long as he conceals

what he thinks. The working of the mind is limited only by the … power of his imagination.

But this natural liberty … is of little value. It is unsatisfactory, even painful to the thinker if

he is not permitted to communicate his thoughts … Freedom of thought, in any valuable

sense, includes freedom of speech.”24

These remarks emphasize that freedom of speech follows from free thought. Freedom

of expression provides the medium for the exchange of free thoughts, it is a necessary

annex to fully realize freedom of thought. This interrelation is reﬂ ected in human rights

law. The manifestation of thought through communication is protected by freedom of

speech. At times, this right is even understood to entail the freedom to “hold opinions

without interference”25, protecting an inner side that coincides with the forum internum

of thought. Nonetheless, for analytical purposes it is important to keep the inner side

and its manifestation apart. In fact, the failure to do so partly accounts for the lacking

interest in freedom of thought. In a broader understanding, most western democracies

are, by and large, freethinking societies guaranteeing the right to speculate, discuss and

criticize.26 This Enlightenment ideal is more or less realized, and any further problems

related to expression of thoughts can be addressed by the well-worked out theories

over scope and limits of free speech. Then, no need seems to arise to invoke the more

abstract right to freedom of thought.

However, it would be a great misunderstanding to conceive of freedom of thought in

these terms alone. Freedom of thought surely demands a social atmosphere conducive

to critical and intellectual thinking, but there is more to it. First and foremost, it has to

be understood as an individual’s right against others (or the state) to remain free from

interventions into thoughts and thinking processes and the mental machinery which

generates them. And in this sense, the time of its practical applicability is yet to come.

I.3. Historical Glance

To truly appreciate the signiﬁ cance of the right and the reasoning behind the legal

distinction between inner and outer freedom, let us take a brief and admittedly rough

look at its historical genesis. Without exaggeration, one can say that these freedoms

23 John S. Mill, On Liberty [1859], ed. by D. Bromwich/G. Kateb, Yale University Press, 2003, 83

24 John Bury, A history of freedom of thought, Oxford University Press, 1952, 1

25 So the wording of Art. 10 ECHR, Art. 19 ICCPR.

26 The EU sometimes expresses its concern with the situation of freedom of thought in some countries,

obviously meaning freedom of speech & press, e. g. EU Commission strategy paper for expansion,

KOM/2001/0700.

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are central elements of the Enlightenment and founding stones of liberal democracies.

Distinctions between inner and outer can be found in writings throughout legal and

political history. Thomas Hobbes laid the groundwork for its presence in today’s law.

In his Leviathan, he wrote:

“For internal faith is in its own nature invisible, and consequently exempted from all human

jurisdiction”. And “because thought is free”, “private man has always the liberty to believe

or not believe in his heart those acts that have been given out for miracles … But when

it comes to confession of that faith, the private reason must submit to public [reason]”.27

In this passage, Hobbes distinguishes between belief and confession or between

freedom of thought and freedom of speech. Whereas the latter may be restricted, the

individual has a right to the former, even against the (almost) absolutist sovereign in

Leviathan. Hobbes provides two reasons: Epistemic limits to peer into the “hearts and

minds” of men bar worldly governments from judging mental states. Moreover, neither

churches nor governments possess the power to compel citizens to have faith and

believe in the truth of teachings. A couple of years later, Baruch de Spinoza noted:

“Only in vain would a sovereign command a subject to hate”, love or fear and forgive some-

one else.28 Those rulers “exert the greatest power who reign in the hearts and minds of

their subjects”, and “were it as easy to control people’s minds as to restrain their tongues,

every sovereign would rule securely.” Yet, “it is impossible for one person’s mind to be

absolutely under another’s control. For no one can transfer to another person his natural

right, or ability, to think freely and make his own judgments … or be compelled to do so”.29

From the observation of lacking factual powers of the sovereign to control the hearts

and minds of subordinates, Hobbes and Spinoza infer an argument against his legal

power to do so. This sounds like a fallacy to modern ears: from the fact that a duty

cannot be enforced, it neither follows on logical or legal grounds that it does not exist,

nor that it were illegitimate. It was a deﬁ ning characteristic of legal rules in natural law

theory of those days that legal rules can be enforced through coercion, because of

which factual and legal powers were considered co-extensive.

A second development, attributed (among others, of course) to the inﬂ uence of

Christian Thomasius, is the distinction between internal and external obligations,

i. e. those owed to God and those vis-à-vis the state, closely related to the emerging

distinction between sins and crimes.30 Violations of these different duties were tried

before different courts and were tied to different sanctions: the internal court of con-

science or the court of heaven (forum internum) sanctions by disturbing the offender’s

inner peace of mind, while the other, the external court of the state on earth (forum

externum) punishes by interfering with external security and liberty of action.31 This

27 Thomas Hobbes, Leviathan [1651], ed. by R. Tuck, Cambridge University Press 1996, 306. The

inner liberty is e. g. the central target of Carl Schmitt’s critique in his Leviathan in the state theory of

Hobbes: meaning and failure of a political symbol [1938], ed. by G. Schwab/E. Hilfstein, University

of Chicago Press, 2008.

28 Baruch de Spinoza, Theological-Political Treatise [1670 ], ed. by J. Israel, Cambridge University

Press 2007, 208

29 Ibid,

250.

30 Bury (Fn. 24), 36. See the entry on Christian Thomasius by Knud Haakonssen in: E. Craig (ed.).

Routledge Encyclopedia of Philosophy, 1998.

31 Sharon Byrd/Joachim Hruschka, Kant’s Doctrine of Right. Cambridge University Press 2010, 191;

Knud Haakonssen, German natural law. In: M. Goldie/R. Wokler (eds.), Cambridge History of Eigh-

teenth Century Political Thought, 265 f. The terms forum internum and externum date back to the

13th century, their exact meaning changed over time. Originally, “forum” stood for court, see Christoph

Bergfeld, Zur Jurisprudenz des forum internum, Ius Commune XVI, 1989 (German).

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division of iurisdictiones in which the church takes care of saving souls and salvation

whereas worldly governments regulate external conﬂ icts is considered a crucial step

in the process of secularization.

These developments culminate in Immanuel Kant’s Doctrine of Right. In vein of

natural law theory, but with a different pronunciation, he restricts the purview of the

law to actions in the external world. “The concept of right”, he wrote, “has to do, ﬁ rst,

only with the external and indeed practical relation of one person to another, insofar as

their actions, as deeds, can have inﬂ uence on (collide with) each other.” And: “Juridical

laws are those “directed merely at external actions and their conformity to law”32. Kant’s

reasoning for this distinction differs from his predecessors.33 To him, the purpose of

the state that justiﬁ es legal coercion is safeguarding reciprocal equal freedoms. The

freedom of the one can be incompatible with equal freedoms of everyone else only

if their actions come in practical conﬂ ict with one another, when they collide in space

and time in the external world. By contrast, internal aspects of a person, her motives

or “good will” cannot, by themselves, restrict another person’s freedom and are thus

matters of virtue or morality. Closely related is Mill’s harm principle according to which

liberties can only be restricted to avert harm to others – what thoughts, apart from

deeds, cannot. Therefore, his principle of liberty, quoted above, comprises ﬁ rst the

inward domain of consciousness.

This line of thinking reverberates in today’s common saying that “law regulates

behavior” (as opposed to mental states) and forms the foundation for the protection

of the forum internum in Art. 9. It contains many dualisms: the inner understood as

thought, conscience and spiritual belief versus the outer corporeal body; the private

vs. the public; worldly vs. heavenly courts; internal vs. external duties; morality vs. law.

Whether they neatly map onto each other is the deeper question in the background of

present argument. The gist of the foregoing is that states are only justiﬁ ed in restricting

external freedom of action, but not internal freedom of thought. For three reasons, the

forum internum is considered beyond the reach of the state: First, epistemic bounda-

ries. Secondly, the absence of factual means to enforce inner obedience. Thirdly, the

legitimacy of state authority is conﬁ ned to the regulation of actions in the outside world:

We don’t have legal obligations against each other in respect to the mental world,

thoughts neither harm others, nor can they restrict others’ freedoms.

In the following, I would like to demonstrate that the empirical premises of the argu-

ment, shared from medieval to present day scholars, are evidently false. Modern day

Leviathan would be able to peer into the brains and minds of citizens and possesses

the tools to alter thoughts, beliefs and convictions, and most governments at least

sometimes do so. Hence, we have to confront the following questions: can and should

the principled line between an inviolable inner sphere and its external manifestation

be sustained, where does it run and should it allow for exceptions?

32 Immanuel Kant, Metaphysik der Sitten (Metaphysics of Morals), Academy Edition, Vol 6. Cambridge

University Press (1797/1991), 230, 214.

33 For Kant’s use of the terms “justice coram foro interno” and “coram foro externo” see Byrd/Hruschka

(Fn. 31), 215 ff. The inner/outer distinction still provides for discussion among scholars, e. g. Dietmar

von der Pfordten, Kants Rechtsbegriff, Kant Studien 2007, 431.

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II. Interventions

II.1. Neuroimaging

The ﬁ rst challenge arises from technologies measuring brain signals, e. g. functional

magnetic resonance imaging (fMRI). While persons lie in a brain scanner, the magnetic

properties of their cerebral blood ﬂ ow are recorded, producing those colorfully shaded

pictures of the brain which have found their way into popular culture. These pictures,

however, are not depictions of real activity but mathematical abstractions. Between raw

data and image lies a complicated computational process. What do they show? Roughly,

physiological correlates of mental activity, from which information about mental states

and processes can be inferred. One of the most spectacular applications concerns

communication with “locked-in” patients in vegetative states, the tragic twilight been life

and death. Due to brain damage these patients cannot communicate anymore. From

the outside it is often unclear whether they are still able to consciously perceive the

world, think or feel pain. To enable communication, they are asked to imagine activities

such as playing tennis or walking through their house while lying in the scanner. These

imagined actions produce distinct neuronal activation patterns. The motor cortex that

directs arm-movements is activated when persons imagine playing tennis while other

areas implicated in spatial navigation are active when they imagine strolling through the

house. In successful cases, patients can actively bring about these neuronal patters

through their imagination alone. These patterns can be used as codes, so that e. g.

imagining playing tennis stands for “yes”. Patients can then answer questions such as

“do you feel pain” through their imagination.34

Other studies were able to infer from brain signals what subjects have just perceived.

Although these reconstructions are not complete visual scences, they are pretty good

in terms of shapes, colors and movement of objects.35 Moreover, in a further develop-

ment of the famous (and contested) experiments by Benjamin Libet, scientist were

able to predict from brain scans the mental operations that subjects were about to do,

e. g. subtracting or multiplying numbers, and, remarkably, even a couple of seconds

before subjects become consciously aware of these operations themselves.36 Further-

more, it seems possible to show persons e. g. sexually laden pictures and see which

brain areas become activated, from which conclusions about sexual orientation can

be drawn. These experiments, although still debated, indicate that brain signals can

reveal mental information and, in a sense, thoughts.

Brain-ﬁ ngerprinting, a different technique, records brain-waves which are not under

the conscious control of the individual. In (contested) theory, the brain processes new

information differently from facts already known.37 Thus, measuring a particular brain

wave (P-300) could establish whether information is already stored in the brain, i. e.

whether a person has “experiential knowledge”, has seen an item or a face before. In

34 See David Cyranoski, Mind-reader, Nature 2012, 178–180 and the references in there.

35 Shinji Nishimoto et al., Reconstructing Visual Experiences from Brain Activity Evoked by Natural

Movies, Current Biology 2011, 1641–1646.

36 Stefan Bode et al., Tracking the Unconscious Generation of Free Decisions Using UItra-High Field

fMRI, PLoS ONE 2011, e21612. A description of the original work that spurred many controversies

can be found in Benjamin Libet, Mind Time: the temporal factor in consciousness, Harvard University

Press, 2004.

37 See the paper by the inventor of the technique, Lawrence Farwell, Brain ﬁ ngerprinting: a compre-

hensive tutorial review of detection of concealed information with event-related brain potentials,

Cognitive Neurodynamics 2012, 115 and the critical papers cited there.

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some countries, brain-ﬁ ngerprinting has been ruled admissible in court, and in India,

a related test (BEOS) has been used for conviction in a murder trial.38

Given this novel access to the mind, the potential of using fMRI and other brain

reading technologies in courtrooms, particularly for lie detection, has prompted contro-

versy, especially among US scholars.39 Regarding defendants in criminal cases, evi-

dence gained from brain-imaging may fall under privileges against self-incrimination.40

Nonetheless, such data could be obtained and used in many other situations: witness

testimony, interrogations, assessment of future dangerousness, civil procedures, private

contexts.41 And as the ﬁ eld is rapidly progressing with new studies being published

daily, more powerful applications are to be expected in the near future.

Do persons have a right against being subjected to neuroimaging? Despite current

technological limitations, scientists point to an “urgent need of regulation”.42 Although

brain reading is not identical to mind reading, it can provide “mental information”. Some

authors try to expand the idea of privacy to the mind, arguing for a right to mental

privacy. A plausible move. However, privacy rights often have limits, e. g. in regard to

severe crimes. Provided that neuroimaging allows conclusions about mental states and

thoughts, the right that scholars are arguing for already exists and has been endorsed

by many states: freedom of thought. Before the advent of neuroimaging, there was

a consensus, laid down e. g. by the Human Rights Committee, of which present day

lawmakers should be reminded: “No one can be compelled to reveal his thoughts or

adherence to a religion”43 – no exceptions. And the literature reiterates that states may

“neither dictate nor demand to know what an individual thinks or believes.”44 Because

of this right, it is viewed with suspicion when persons have to declare their religion or

opinion. And correctly so.45 If that is worrisome, the use of machines to record pat-

terns of brain activity without active participation by affected persons themselves and

drawing conclusions about their mental states must likewise give rise to concern. Apart

from torture, many of the old ways of bringing people to reveal their thoughts pale in

comparison with brain imaging technologies. It is hard to imagine a better paradigmatic

case against which freedom of thought should provide protection.

38 State of Maharashtra v. Sharma. Case No. 508/07. Jud. June 12, 2008; Anand Giridharadas, India’s

Use of Brain Scans in Courts Dismays Critics, The New York Times, Sept. 15th 2008, A10.

39 See e. g. the papers in Emilio Bizzi et al., Using Imaging to Identify Deceit: Scientiﬁ c and ethical

questions, American Academy of Arts & Sciences, 2009.

40 See e. g. the thoughtful discussion by Nita Farahany, Incriminating Thoughts, Stanford Law Review

2012, 351–408.

41 Cf. Eyal Aharoni et al., Neuroprediction of future rearrest. Proceedings of National Academy of Sci-

ence 2013, 6223.

42 Hank Greely/Judy Illes, Neuroscience-Based Lie Detection: The urgent need for regulation, Ameri-

can Journal of Law & Medicine 2007, 377 provide a comprehensive review of technology and legal

provisions in the US.

43 Human Rights Committee (Fn. 4), para 3, see Taylor (Fn. 6) for its history.

44 Harris et al. (Fn. 5), 429.

45 The use of “belief” in the present context is ambivalent: sometimes it means religious belief, some-

times ideas, opinions, etc. I understand the literature to suggest that no one has to reveal his beliefs

in the wider sense, not conﬁ ned to religious beliefs.

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II.2. Mind and Brain Interventions

In light of the absolute protection of freedom of thought, various novel means to directly

intervene into brains and minds of persons and to change thoughts quite directly seem

even more worrisome. Consider the implantation of electrodes inside the brain in order

to stimulate speciﬁ c target areas. In successful cases, deep brain stimulation (DBS)

affords to severely alter mood of persons. By turning the stimulation on, depressive

and anhedonic symptoms of persons can be transformed dramatically within minutes.46

As a necessary but not unintended by-product, interventions also modify the kind of

thoughts persons have, what they desire, their plans for the future, how they make

decisions, etc. At times, patients and physicians disagree about the intensity of the

stimulation, which leads to intriguing and perplexing questions: who should have the

power over the remote control for the stimulation changing emotions and therewith,

thinking? Is there is a normal level of happiness and well-being to which stimulation

should be restricted? Does the “inalienable right to life, liberty and the pursuit of happi-

ness” also encompass direct stimulation of the pleasure centers of the brain?47 Whoever

possesses control of the stimulator directly controls central elements of the affected

person’s mind. Legal regulations of these cases must take note of freedom of thought.

While DBS involves a risky surgery procedure, noninvasive interventions can be

used on everyone. Transcranial magnet stimulation (TMS) and transcranial direct-

current stimulation (tDCS) stimulate brain areas non-invasively, e. g. by placing a

powerful magnet coil over the skull (TMS) that inhibits or increases activity in targeted

brain areas. These interventions are studied for many applications. In a study highly

relevant for present concerns, scientists were able to change moral decisionmaking

through TMS stimulation.48 Participants altered their moral judgments over the permis-

sibility of harming others (attempted offences) during stimulation of a speciﬁ c site of the

brain. The intervention did not undermine the general capacity for judgments, but their

content. Researchers themselves were astonished that moral decisionmaking could

be interfered with so easily. Studies of this kind lead some philosophers to suggest

that the irresolvable difference between deontologists and consequentialists might be

due to ﬁ ne differences in brain activity. In any case, it should be evident that without

consent, interventions targeting decisonmaking violate the right to free thought.49

46 Thomas Schlaepfer et al. Deep Deep Brain Stimulation to Reward Circuitry Alleviates Anhedonia in

Refractory Major Depression, Neuropsychopharmacology 2008, 368.

47 Cf. the report by Matthis Synofzik et al. about the case of a patient who seeks to have control over

the stimulation of his “pleasure center”, which doctors deny. How Happy is too Happy? Euphoria,

Neuroethics and Deep Brain Stimulation of the Nucleus Accumbens. American Journal of Bioethics

– Neuroscience 2012, 30–36

48 Liane Young et al., Disruption of right temporoparietal junction with TMS reduced the role of beliefs

in moral judgment, Proceedings of the National Academy of Sciences 2010, 6753

49 Even the much weaker stimulation via tCDS has proven capable of manipulating behavior and men-

tal states. Through inducing a weak – and as far as we know, harmless – electric ﬁ eld on the surface

of the scalp, neuronal activity can be modulated (in- or decreased, depending on the polarity of the

electric-ﬂ ow), tCDS stimulation can modify the capacity for creative thinking Richard Chi/Allan Sny-

der, Facilitate Insight by Non-Invasive Brain Stimulation, PLoS One 2011, e16655. Also, it can alter

a person’s propensity to punish unfair behavior, indicating that it is powerful enough to modify moral

behavior, Daria Knoch et al., Studying the Neurobiology of Social Interaction with Transcranial Direct

Current Stimulation—The Example of Punishing Unfairness, Cerebral Cortex 2008, 1987.

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II.2.1. Coerced Psychiatric Interventions

It should be noted that neurobiological interventions into minds are not entirely new.

In fact, since the pharmacological revolution of the 1950ies, psychiatry changes the

minds of patients through chemical means. At times, without consent and against the

will of affected patients. It would be implausible to deny that these interventions change

thoughts. They aim at reducing or alleviating symptoms of mental disorders, many of

which are deﬁ ned through qualities of thought (e. g. depressed, unmotivated, aggres-

sive thoughts) or other properties such as the speed of thinking, the order of thought,

rationality or negative thought patterns.50 Thus, coerced psychiatry interferes with the

forum internum. Albeit much progress towards a humanistic psychiatry has been made

since the 1970ies, some civil right groups still demand the abolition of coerced interven-

tions by appealing to freedom of thought.51 Of course, this is a complicated issue with

which I cannot deal here adequately. However, prima facie there is an evident tension

between the protection by the right and current practices in psychiatry. Personally, I

do believe for ethical reasons that some of these interventions might be unfortunate

yet unavoidable. Nonetheless, Art. 9 does not provide for exceptions. It is worth not-

ing that in case-law and legal literature on coerced psychiatry, no reference is made

to freedom of thought. Instead, it is argued whether a “right to refuse treatment” or a

“freedom to mental illness” exists.52 However, this seems to frame the issue from the

wrong perspective. A right to remain free from severe interventions into one’s minds

already exists – the question is rather whether and for what reasons we can legitimize

to not follow its absolute command.

While therapeutic interventions for the good of affected persons themselves may

be justiﬁ able – though more intricate than often assumed –, states also intentionally

manipulate the thinking processes of citizens for other purposes. Some states coer-

cively medicate defendants to render them competent to stand trial, and in the US,

convicts are even forcibly treated to restore their “competence to be executed”.53 Here

are some further examples of currently discussed or studied interventions of prime

interest for the law: Some authors propose using TMS to enhance memory capacities

of eyewitnesses to make their testimony more accurate and reliable.54 Others discuss

interventions that let persons lose (some of) their memories through erasing or tam-

pering with engrams, the neuronal structures encoding memories.55 Memories are

50 In a recent decision, the German Constitutional Court explicitly acknowledged that interventions aim

to change thinking patterns of patients. BVerfG, 2 BvR 882/09 Jud 23 March 2011 para 44.

51 See e. g. the website of the “Mind Freedom Association” www.mindfreedom.org [Accessed Oct 30th

2013].

52 See e. g. Jennifer Fischer, A Comparative Look at the Right to Refuse Treatment. Hasting Center Int.

Law Review 2006, 153, in which the right to freedom of thought is not even mentioned.

53 Sell v. United States, 539 U.S. 166 (2003); Kirk Heilbrun et al., Treating individuals incompetent for

execution. American Journal of Psychiatry 1992, 596

54 Anton Vedder/Laura Klaming, Human enhancement for the common good – Using neurotechnolo-

gies to improve eyewitness testimony. American Journal of Bioethics – Neuroscience 2010, 22. This

might be achieved through stimulation brain mechanisms active during the retrieval phase. Apparent-

ly, studies indicate that TMS stimulation during retrieval can reduce false memories without affecting

veridical memories (ibid, 25). See also the critical comments on the paper in the same issue of the

journal.

55 The original study concerns mice: Jin-Hee Han et. al, Selective Erasure of a Fear Memory, Science

2009, 1492; for effective less invasive means see Daniela Schiller et al., Preventing the return of fear

in humans using reconsolidation update mechanisms, Nature 2010, 493. Adam Kolber proposes a

right to freedom of memory, Therapeutic Forgetting, Vanderbilt Law Review 2006, 1561.

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thoughts with a special content (the past), and hence, interventions that manipulate

memory manipulate thoughts. TMS and tDCS are studied for use in lie-detection, as

stimulation of brain networks involved in conscious deceit may temporarily obstruct

mental capacities to fabricate lies.56

Finally, some ethicists such as the Oxford philosopher Julian Savulescu propose

employing biotechnologies to make persons morally better (“moral enhancement”). He

recognizes that current law might oppose such measures but dismisses such rights

as morally worthless: there is no moral right to mental privacy, he claims. In a thought-

provoking book, he argues that liberal democracies granting wide individual freedoms

appear ineffective to tackle pressing world problems such as global warming and

injustice. Their solution requires far-ranging concessions of the people of the western

world like reduction of consumption, which they are unwilling to make. The inability to

expand empathy and solidarity towards the rest of the world as well as e. g. the strik-

ing deﬁ cits to take long-term consequences of actions adequately into account could

be rooted in humankind’s psychological make-up. Evolved to survive in clans of some

hundred persons and to avert immediate dangers, it might be unable to cope with today’s

problems of seven billion. Then, so it is argued, the use of biotechnological means to

alter moral propensities, thoughts and actions should be considered.57 In these writings,

Brave New World is not too far away. Yet, it is hard to evade the hunch that solutions

might require states to change citizens’ behavior not only through limiting freedom of

action, but also by inducing, persuading or convincing them to think differently.

II.2.2. Education

Accordingly, a more comprehensive inquiry into the relation between governments

and the thoughts of citizens would have to include the ﬁ eld of education. Despite all

institutional freedoms, schools and universities are state institutions which dramati-

cally shape thinking patterns, cognitive capacities and, more broadly, the way people

perceive the world (in many countries, school education is mandatory). In a sense, this

might constitute the most invasive intervention into minds – and brains – of citizens.

In his “Government and the Mind”, the philosopher Joseph Tussman addresses this

point. The evident legitimacy of state education leads him to a provocative conclusion:

“Government, we are told, may not invade the ‘sphere of intellect and spirit…’ It would

be difﬁ cult to ﬁ nd another statement so plausible, so seductively obvious and yet so

utterly, deeply mistaken”.58 “The dogma that government has no business in the realm

of the mind is unfounded and radically false”.59

Truly, governments do have legitimate concerns with citizens’ minds, not only in

education, but also, for instance, in rehabilitation, one of the prime peneological aims.

Treatment of criminal offenders or purportedly dangerous persons, be it through psycho-

logical or pharmaceutical means, aims at behavior modiﬁ cation, often through altering

cognitive aspects and thinking. Tussman’s powerful argument illustrates that a better

understanding of meaning and limits of internal freedom is necessary. Perhaps, his

56 Bruce Luber et al., Non-Invasive Brain Stimulation in the Detection of Deception, Behavioral Scienc-

es & the Law 2009, 191

57 Ingmar Persson/Julian Savulescu, Unﬁ t for the Future – The need for moral enhancement, Oxford

University Press 2012

58 Joseph Tussman, Government and the Mind, Oxford University Press 1977, 3

59 Ibid, 13

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observations are right but his conclusion wrong. What he calls the “Teaching Power” of

the state might be granted without necessarily discarding the idea of freedom of thought.

II.2.3. Neuromarketing & Horizontal Applicability

Furthermore, in modern times, freedom of thought is not only threatened by states but

also by interventions through private actors such as companies. Whether acts of pri-

vate persons can impinge upon the right depends on its horizontal applicability and the

positive duties of states to protect citizens from unwanted mind interventions by third

parties. As far as I see, this theoretical question has not been thoroughly addressed,

even though there are many prima facie dubious attempts to change thoughts of oth-

ers by private actors.60

Consider, for instance, some forms of marketing, the sophisticated art of changing

other’s thoughts. In the 1950’s, Vance Packard claimed in his “The Hidden Persuad-

ers” that sales of popcorn and soda in cinemas can be increased through subliminal

advertisements (stimuli below the threshold of conscious awareness). His book caused

public uproar61 – and for good reasons: If effective, such interventions seem to be

paradigmatic examples of infringements with freedom of thought. Packard’s claims

turned out to be fabricated. Half a century later, marketing has developed into a full-

ﬂ edged subdiscipline of psychology conducting sophisticated studies on decision-

making, consumer preferences and attitudes, all in the pursuit of one goal: Altering

preferences, desires and opinions through designing effective marketing campaigns,

i. e. mind-changing stimuli.

Browsing through studies published in marketing journals, one encounters strategies

such as forging emotional attachment to brands, emotional conditioning of consumers or

using peripheral (not subliminal) routes of perception. One cannot but get the impression

that these apparently scientiﬁ cally validated means to change how consumers think are

designed in ways not appealing to reason but exploiting mental vulnerabilities. It is naïve,

if not absurd, to assume that marketing is, as some advocates still pretend, primarily

about conveying information. From a common sense and a normative perspective, it

is about changing thoughts and inﬂ uencing decision-making. In principle, such means

may interfere with consumer’s right to remain free from manipulative interventions. Of

course, ultimately this depends on the efﬁ cacy of speciﬁ c means.

More generally, marketing is a ﬁ ne example to address the puzzling question why

freedom of thought receives so little attention: we do not feel being manipulated by

commercials and ads. Phenomenologically, thought is free. But feelings of freedom

do not warrant the conclusion that we are not inﬂ uenced. One of the main insights of

social psychology is the unreliability of introspection, our failure to acknowledge that

we are not aware of the forces that operate in us and, inter alia, prepare our decisions

– we are “unaware of our unawareness”.62 This becomes easier conceivable when

one appreciates the following fact: Millions of stimuli enter our mind per minute, only

60 Nowak (Fn. 17), 413 assumes state duties under the ICCPR to prevent interventions from private

parties.

61 For the history of the book and today’s relevance see Michelle Nelson, The hidden persuaders: Then

and Now, Journal of Advertising 2008, 113; for a (partly) successful replication of the experiment Jo-

han Karreman et al., Beyond Vicary’s fantasies: The impact of subliminal priming and brain choice,

Journal of Experimental Social Psychology 2006, 792.

62 Innumerous studies show that persons can be inﬂ uenced without their awareness, see e. g. Daniel

Wegner, Illusion of Conscious Will, Bradford 2004 or the papers in Hassin et al. (eds.), The new

unconscious, Oxford University Press 2005.

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a very small percentage of them rises to conscious awareness. What happens with

the others? Obviously, they are processed and ﬁ ltered by unconscious mechanisms.

Attention – and access to consciousness – is given only to those that are deemed

important (e. g. novel, unexpected). As other stimuli may nonetheless be effective,

persons can be inﬂ uenced without awareness. To study these processes, marketers

make use of fMRI, often in private institutions and without publishing their ﬁ ndings. Let

us hear what they say:

“At MindSign Neuromarketing, we look at the subject brain response to your ad, game,

speech, or ﬁ lm. We look at how well and how often it engages the areas for attention/

emotion/memory/and personal meaning. We also look at how well it activates the brain

as a whole. From this data we can tell what your audience was thinking while using your

software or watching your content, moment by moment, regardless of what that content

is. Were they scared or sleepy, happy or sad? Were they even paying attention? We can

show you how your product is affecting the consumer brain even before the consumer is

able to say anything about it.”63

Although the company certainly overstates its abilities – it’s marketing, after all – these

remarks illustrate the direction into which this multi-billion dollar industry is moving.64

Already today, neuroscience affords to identify brain circuits processing brand names,

to investigate whether particular brands elicit positive (non-conscious) reactions in

emotional brain areas, to forecast which ads will be remembered for a longer time

and even to predict purchases more accurately than the persons themselves.65 Thus

neuroscience and psychology shed more light on traditional forms of changing minds

and this knowledge is used to make ads more effective. This leads NYU professor of

psychology John Bargh to conclude that “methods to thwart or bypass the consumer’s

defenses against inﬂ uence are becoming ever more powerful, and yet he remains as

ignorant of these inﬂ uences and … overconﬁ dent of his control”.66

Suppose there is some truth to this. Traditional legal limits to marketing such as

deceptive or misleading information might then be misplaced. Consumers are not being

lied to, they are seduced by appeal to (unconscious) dispositions and emotions. Adver-

tisement is not mind-control, but an attempt to subtly change thoughts and desires by

bypassing rational self-control. Should such interventions be allowed? The legal problem

arises from the fact that sending advertisement messages is protected by freedom of

speech whereas we do not have a clear understanding of the countervailing right on

the side of the receiver – freedom of thought. The real question, then, is not whether

ads coerce consumers into buying or marketers ﬁ nd a “buy button” in the brain (they

won’t),67 but rather at which point psychologically optimized stimuli overstep the line

63 www.mindsignonline.com [accessed Jan. 10th 2013]

64 Dan Ariely/Gregory Berns, Neuromarketing: the hope and hype of neuroimaging in business, Nature

Reviews Neuroscience 2010, 284; Michael Brammer, Brain Scam? Nature Neuroscience 2004, 683

65 A famous study investigated different brain activation patterns of Coke and Pepsi with the interesting

– and hard to interpret – result that people prefer Pepsi if they are unaware of what they are drinking

while they prefer Coke if they know so. Apparently, the appraisal of the brand changes our taste ex-

perience. Read Montague et al., Neural Correlates of Behavioral Preference for Culturally Familiar

Drinks, Neuron 2004, 379. John Rossiter et al., Brain-imaging detection of visual scene encoding

in long-term memory for TV commercials, Journal of Advertising Research 2001, 13; Thorsten Möll/

Franz-Rudolph Esch, Emotionen machen den Unterschied. Absatzwirtschaft 2008, 34 (German);

Brian Knutson et al., Neural Predictors of Purchase, Neuron 2007, 147

66 John Bargh, Losing Consciousness: Automatic Inﬂ uences on Consumer Judgment, Behavior, and

Motivation, Journal of Consumer Research 2002, 280

67 Esp. marketers seem to suppose that this is the standard for impermissibility, e. g. Hans-Georg

Häusel, Neuromarketing. Haufe 2007, 15 (German). Cf. Emily Murphy et al., Neuroethics of neuro-

marketing, Journal Consumer Behavior 2008, 293

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from embellished information to manipulation, when they interfere with the freedom of

the forum internum.

II.3. Thought Crimes and Negative Sanctions for Thoughts

Another potential interference with freedom of thought consists in imposing negative

sanctions for having speciﬁ c thoughts. This sounds reminiscent of Orweillian thought

crimes, which surely do not have a place in liberal democracies – or so it seems. Con-

sider the following case, modeled after decision by the US 7th Circuit of Appeal.68 Doe,

a formerly convicted sex offender, likes to sit in public parks and has sexual thoughts

about the children and women he observes. He considers these thoughts inappropriate

and discusses them with his therapist who in turn informs the police. The city issues

a ban on Doe, prohibiting him to enter public parks, schools and entertainment areas.

Doe’s behavior, immoral it may be, is not of a kind that immediately threatens others

and he does not intend to do so. However, there is a risk of re-offending which has to

be taken into account by authorities. This raises the question whether a city may “con-

stitutionally ban a citizen from public property based on the discovery of his immoral

thoughts”?69 Everyone would feel offended by Doe’s thoughts and be uncomfortable

visiting a park in his presence. Factually, his thoughts restrict the freedom of action

of park visitors. In this situation freedoms do not collide, as Kant suggested, because

external actions come in conﬂ ict with each other, but solely because of thoughts: Only

because park visitors know what Doe thinks, they do not want to visit parks anymore.

Though nothing in the external world has changed, and, strictly speaking, the external

freedom of action of visitors is not curtailed, Doe’s thoughts provide the motive for

them to refrain from visiting public places. Or, with regard to the Millian harm principle:

Doe’s thoughts, per se, understandably harm others. How does this map onto the legal

relations between P and Doe; who has claims against whom to have – or not have –

thoughts or visit the park?

To make sure: if Doe were to openly express his thoughts and reveal his fantasies

to others, his actions could be considered harassment or indecent behavior and might

be sanctioned. But the point in this case is that Doe keeps his thoughts private. The

court upheld the ban, arguing that it did not interfere with Doe’s right to freedom of

expression. The 1st amendment of the US Constitution protects conduct with signiﬁ cant

expressive elements, but Doe did not go into the park for such purposes.70 While the

court accepted that states cannot punish individuals for “pure thought”, it considered

the ban to be directed against actions, not against thoughts. And as the ban does not

constitute punishment, the court held that it does not interfere with any fundamental

liberty interest of Doe and is justiﬁ ed as it serves legitimate public interests.71

Indeed, the ban might not constitute punishment but rather a preventive police meas-

ure.72 However, this does not evade the central problem: are governments permitted

to impose such negative consequences on individuals for having particular thoughts?

In other words: Do such measures interfere with the forum internum? First, as I shall

68 Doe v. City of Lafayette, 377 F.3d 757 [2004]

69 This is how the issue was framed in a preceding decision.

70 Ibid, at 35

71 Ibid, at 45

72 Note that the distinction between punishment and civil or police measures is drawn differently in

various national systems.

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argue later, freedom of thought may permit Doe to have these kinds of thoughts. None-

theless, the state may grant this right and claim it merely bans Doe’s presence in the

public, not his thoughts. However, the court passes over the main problem too quickly.

Doe’s outward behavior is lawful, and he has a right to entertain sexual thoughts. It is

awkward legal algebra if two allowed actions add up to something restrictable. So even

if the ban is not punishment, it is a negative sanction for having particular thoughts

and may for this reason impinge upon Doe’s right. Freedom of thought has to entail a

prohibition to connect negative sanctions with having particular thoughts.

Here is a parallel: Freedom of religion includes a corresponding prohibition to sanc-

tion persons for their religious beliefs, otherwise it would turn into an empty provision.

Imagine a state declaring the following: “Of course, we protect freedom of religion,

everyone is allowed to believe what she wants. We just put all believers into security

detention as their belief system favors spiritual teaching over state law. We can rea-

sonably conclude that adherents think that they shouldn’t obey worldly laws. Still, we

respect their right to belief.” This would evidently interfere with freedom of belief. Unless

one intends to overthrow the state, the strong protection of the forum internum has to

entail that no one has to fear repercussions for his beliefs – and likewise, his thoughts.

The security concerns are nonetheless understandable. But it is clear from wording

and jurisprudence that the internal side cannot be restricted. Unless Doe’s thoughts

are manifested, interfering with them is prohibited. The drafters of the treaties made

a decision balancing the forum internum with state interests: the former, in principle,

outweighs the latter. Public safety is mentioned in many limitation clauses,73 but none

of them applies to the forum internum. In this light, the judgment was wrong.

More generally, all persons with “evil thoughts” in some sense, constitute an ab-

stract threat to society. These thoughts can come to the knowledge of authorities on

many ways, wiretapping, conﬁ scating diaries, searching computers, etc. And with more

sophisticated surveillance technologies installed in public places such as cameras that

detect suspicious body language, high heart-rates and blood pressure supposedly

due to “inner tensions” or systems recognizing facial “micro-expressions”, pupil dila-

tion and eye-movements supposedly telltales of “evil intentions”, security authorities

may have growing outward bodily evidence for internal states.74 Of course, they are

not interested in eye-blinks or blood pressure as such, but in their function as proxies,

revealing particular states of minds.

This may lead to the following scenario in the not-so-far future: In places such as

banks, airports or even public parks, outward signs of particular mental states could be

observed and prompt further preventive measures such as not being allowed to enter

foreign countries or board airplanes. How should we conceptualize this in regard to

freedom of thought? Prima facie, these measures interfere with the right to think what

one wishes. After all, the only reasonable advice is to not have speciﬁ c thoughts in

these places. And this deterrent effect is one of the reasons for installing such devices.

Surveillance technologies do alter behavior, in these cases, mental states, perhaps

leading to “zones of restricted freedom of thought”. Again, such measures are not a

priori unreasonable, but it is hard to deny that they impinge upon free thinking.

On a closer look, the problem in all of these case lies in the strong link between

thoughts and actions. States may regulate behavior, and as every action ultimately

73 E. g. Art. 10 ECHR, Art. 18 ICCPR.

74 A US program is called “Future Attribute Screening Technology” or Malintent, see Sharon Wein-

berger, Terrorist ‘pre-crime’ detector ﬁ eld tested in United States, Nature News 27.05.2011; Joelle

Moreno, The Future of Neuroimaged lie detection and the law, Akron Law Review 2009, 716.

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springs from thoughts, this may be taken as sufﬁ cient grounds to monitor thinking. But

if the regulation of behavior is expanded into heads – and minds – it interferes with the

forum internum. Hence, the real problem is to delineate both fora.

II.4. Neuroenhancement

Eventually, a last yet unaddressed question over the scope of freedom of thought: Does

it entail the liberty to change one’s own mind with the help of tools? Whereas speciﬁ c

kinds of stimuli such as books or magazines are protected by free expression and the

right to “impart and receive” information, the use of other means to alter one’s mind is

not. A current ethical controversy concerns the use of neuroenhancements, e. g. phar-

maceuticals improving cognitive capacities such as attention, concentration, memory or

willpower.75 Apparently, a growing number of persons wishes to change their cognitive

machinery and alter their mental properties, conscious experiences and therewith, the

content and quality of thought. As most of these substances are classiﬁ ed drugs, the

controversy over neuroenhancement relates to debates on liberalizing drug policy. But

there are differences: For one, consumers have different motives: They do not desire

to “drop out” of society but seek better means for participating in “mental economies”.

They are not driven by addiction or weakness of will, but are rational consumers who

demand quality products, administered under the surveillance of doctors, and they are

prepared to bear the risk of negative side-effects.

Different motives and social context lead to new ethical and legal questions. Pro-

ponents of neuroenhancement appeal to cognitive liberty which they consider a fun-

damental human right that permits the use of tools to ﬁ ne-tune the workings of one’s

mind.76 Prima facie, they have a point: If freedom of thought is the right to think what

one wishes, it may encompass the use of aids necessary to change one’s thinking

processes. Unless persons severely harm themselves, the strong and widely accepted

legal guarantee of self-determination over one’s body must entail, I am tempted to say

a fortiori, self determination over one’s brain chemistry and mental states. Prohibition

– or even criminalization – of mind altering tools interferes with the freedom to change

one’s mind.

On the other hand, critics are worried over social pressure likely generated by

widespread use of neuroenhancers. To stay competitive in job markets and to live

up to shifting expectations of normal mental functioning, persons could be softly “co-

erced” into consuming mind-altering substances. The critic’s argument is, essentially,

that persons have a right to refuse substances changing thoughts (and emotions).

To be effective, this right must warrant restrictions of how others alter their minds, at

least when the minds of users and refusers compete in job markets. Thus critics and

proponents appeal to the same interest: to self-determine what is on – and in – one’s

mind.77 Again, the structure of the conﬂ ict is interesting: Freedom of the one to change

75 Martha Farah et al., Neurocognitive Enhancement, Nature Reviews Neuroscience 2004, 421; Hank

Greely et al., Towards responsible use of cognitive-enhancing drugs by the healthy, Nature 2008,

702.

76 See e. g. Wrye Sententia, Cognitive Liberty and Converging Technologies for Improving Human

Cognition, Annals of N.Y. Academy of Science 2004, 221; Richard Boire, On Cognitive Liberty, Part

I, Journal of Cognitive Liberties 2000, 7

77 For a detailed treatment see Christoph Bublitz, My mind is mine!? Cognitive Liberty as a Legal Con-

cept, in: E. Hildt/A. Franke (eds.), Cognitive Enhancement, Springer 2013, 233.

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her mind interferes with the freedom of another to refuse to do so. Not external actions

collide, but constitutions of minds competing in a mental economy.

II.5 Summary

No scholar can map them // No hunter can trap them // No man can deny: Die Gedanken

sind frei!78 Against the backdrop of foregoing examples, all the hope and conﬁ dence

of the freedom of man and the insurmountable powers of his inner sphere expressed

in these lines of an old German folk song evaporate. The ﬁ rm belief in freedom of

thought might have been well-founded during the time in which the general principles

of western democracies and modern constitutions were formulated. But our view of

man has changed, and so must the law. All three reasons for the absolute protection of

freedom of thought sketched above are false. First, we can make reasonable assump-

tions over the content of other minds. Secondly, the modulation of electro-chemical

properties of the brain enables unparalleled control over the human psyche. Thirdly,

mental capacities can, in principle, be the prime source of social conﬂ icts in mental

economies. Hence, the law faces a twofold challenge: To construe the right to freedom

of thought in a way that adequately deals with these interventions, and furthermore, to

argue, especially vis-à-vis proposal by ethicists and security interests, why the right is

of absolute nature. It is easy to solemnly proclaim absolute rights as long as no factual

powers to interfere with them are available. In the age of neuroscience, we have to

provide compelling reasons.

III. Proposal

In the last section, I shall propose four principles that constitute the core meaning of

the right and argue for some narrow exceptions to its absolute nature.

III.1. Core Meaning of Freedom of Thought

I suggest that meaning and scope of the right can be captured in four principles. Here

is the ﬁ rst: 1. No one has a claim against others that he has to be in a speciﬁ c mental

state or entertain particular thoughts. This means that no one is under a duty to be in

a particular mental state, which also entails that no one is obliged to not have speciﬁ c

thoughts.

This is a rather weak and narrow understanding which may need further expansion,

but it already provides some conclusions: Regarding the case of Doe, states (and park

visitors) do not have a claim that he does not entertain sexual fantasies, he has a right

to them. Furthermore, any state measure that changes thinking processes of citizens

cannot be justiﬁ ed by appeal to a duty of citizens to have (or not have) a particular

mental state (other justiﬁ cations notwithstanding).

Do states live up to this minimal guarantee? Some of the discussed interventions

violate this precept. If states were to manipulate capacities for memory or for fabrica-

tion of lies, they do so in order to avoid that affected persons have speciﬁ c thoughts

78 “Gedanken sind frei” means thought is free.

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(e. g. false memories). Legal duties of summoned witnesses usually pertain to actions:

to testify truthfully. This external duty could be interpreted in a way that it entails an

internal side, the duty to remember correctly and to not fabricate lies, and interventions

would enforce this duty. However, such an understanding would run contrary to the ﬁ rst

principle of freedom of thought. In addition, coerced psychiatric interventions violate the

ﬁ rst principle. Many of them clearly target thinking processes, and it is their modiﬁ cation

that provides the prime rationale of forcefully administering psychoactive substances.

III.2. Thought

However, one might be tempted to argue that thoughts related to mental disorders are

not protected by Art. 9. This raises the question what the vague term “thought” means.

Although I cannot give a precise deﬁ nition, I would suggest understanding thoughts

as mental states that have content, meaning, or as philosophers of mind say, that are

intentional in the sense of referring to something beyond themselves (the “object” one

thinks, worries or dreams about). I wish to leave for further discussion distinctions

between mental states such as thoughts and emotions and only note that psychology

provides evidence that they are factually strongly interwoven entities.79 Apparently even

rational thinking can be impaired if persons lack emotional capacities, and likewise

– and familiar from experience – the kind of thoughts that come to mind can change

dramatically when mood and emotions change. As Spinoza put it, emotions make the

mind inclined to think one thing rather than another.80 Thus, altering emotional states

sometimes alters thoughts and interferes with Art. 9.81 At any rate, the scope of Art. 9

should not only entail thoughts as states but thinking as a process, and accordingly,

the manifold mental processes which thinking involves. Moreover, it would be too nar-

row if it only captured fully rational, logical thinking. Associative and creative thinking,

thinking with inner images, mental simulations, poetic and even surrealist thought

should be comprised.

III.3. Free Thought

Furthermore, one may ponder about the “freedom” of thought. Does the right only pro-

tect “free” as opposed to “unfree thoughts”? Are only those interventions illegitimate

that produce such “unfree thoughts”, and what could this mean? Remarkably, even in

philosophy, the very discipline of free thought, the concept as such has not received

much attention. Generally, it does not appear promising to let the scope of the right de-

pend on such highly unclear notions, strongly interwoven with metaphysical questions.

Here, I shall only highlight two meanings of “free” which cannot apply to present context.

First, freedom from physiological processes in the brain. Very likely, all mental phe-

nomena in one way or another depend on (are realized by) dynamic neuronal occur-

79 Arguably, in Descartes’ famous cogito ergo sum, which, by the way, highlights the importance of

thought for human existence, “cogito” does not only mean logical thinking, but also sensing and

feeling, a conscious sense of existence which cannot be further doubted.

80 Baruch de Spinoza, Ethics [1677], ed. and transl. by E. Curley, Princeton University Press, 1994

81 This is the central claim of the somatic marker thesis championed by Antonio Damasio et al., The

Somatic Marker Hypothesis and the Possible Functions of the Prefrontal Cortex, Philosophical

Transactions of the Royal Society B, 1996, 1413.

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rences. The exact relation between mental and brain states remains, even in the days

of neuroscience, one of the last great scientiﬁ c and philosophical mysteries. However, I

suggest that this question is, by large, irrelevant in deﬁ ning the scope of the forum inter-

num. In the free-will debate, some positions are based on the assumption that the will is

not (exclusively) determined by brain states. This kind of independence is a metaphysical

possibility, but it is not a suitable position for normative considerations with respect to

freedom of thought: If the law were only to protect those thoughts that exist independ-

ent from brain states, it might likely end up protecting none at all. Furthermore, the right

would be incapable of capturing the most worrisome interventions, those that manipulate

thoughts via electro-chemical properties of the brain (TMS, DBS, pharmaceuticals). Obvi-

ously thoughts modiﬁ able through their neuronal underpinnings cannot be independent

from them. In order to protect against such interventions, the scope of the right must

encompass thoughts accessible on the neuronal level. Thus, at least here, the law does

not have to take a stance in philosophical quarrels over the ontology of mental states.

Moreover, insofar as thoughts depend on brain states and neuronal processes, the right

to freedom of thought has to protect those bodily states, indirectly, too. Not for their own

sake, but in virtue of the mental effects brought about through their manipulation.

Secondly, “free” cannot presuppose alternative possibilities as in the free–will

debate. There, the central (and contested) deﬁ nition of freedom implies alternative

possibilities: An action is free if the actor could, ceteris paribus, have acted otherwise;

the will is free if he could have wanted otherwise. Yet, freedom in this sense does not

apply to thoughts. It would read: Thought is free only if the thinker could have thought

otherwise. However, a thinker normally does not consciously choose which thoughts

he will have next (this would itself be a thought, leading into an inﬁ nite regress). Rather

our thoughts come and go in a “stream of consciousness”, and we have some capaci-

ties to “channel” this stream, e. g. modifying or halting it through inner attention. More

importantly, the nature of some thoughts such as opinions or beliefs simply does not

allow for this kind of alternative freedom.82 It would be absurd to suggest that a person

who believes in X is only a “free believer” if she could also, ceteris paribus, believe in

non-X. Beliefs follow rules of logic and evidence and are therefore not under conscious

control.83 Take any ﬁ rm belief and try to believe in the opposite, e. g. that the earth is

ﬂ at. No matter how hard you try, you will not succeed. Beliefs are deeply embedded

in a wider network of beliefs, some of them are so central to who we are that they are

practically unsheddable. But nonetheless, if sinister neuroscientists could implant differ-

ent beliefs, they would interfere with free thought. Therefore, it cannot be a necessary

condition of freedom of thought that the thinker could have thought otherwise.

These two points illustrate the challenges of deﬁ ning the scope more concretely.

However, one might identify plausible instances of “unfree thoughts” such as compulsive

or obsessive thoughts and could argue that they do not fall under Art. 9. However, this

would not solve the problem of coerced psychiatry. A great range of mental disorders

currently treated without consent is not of this kind and interventions usually target

many cognitive domains related to thinking, not only compulsive thoughts. If the scope

of the right were to encompass only thoughts not related to mental disorder, a primar-

ily medical, metaphysically problematic and politically contested category would be

introduced into the law in an obvious attempt to disguise the problem with psychiatry.

This would require substantive argument and any narrowing of the scope would have

82 Here, I use “belief” in the ordinary sense.

83 Philosophers call this the problem of doxastic voluntariness, see e. g. Philip Petit/Michael Smith,

Freedom in Belief and Desire, Journal of Philosophy 1996, 429.

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to be based on intrinsic properties of the to-be excluded thoughts, not on categories

such as disorder and illness which take recourse to social and interpersonal dysfunc-

tioning. Instead of narrowing the scope of the right and defending the more or less

futile position that interventions targeting thinking process somehow do not interfere

with free thought, one should face the necessity to consider exceptions.

III.4. Cogitationis Poenam Nemo Patitur

Having put a little more gloss on the protected mental entities, let us take a closer look

at the kind of actions prohibited by the right. From the ﬁ rst principle we can derive a

second: cogitationis poenam nemo patitur – no punishments for having particular

thoughts. It is inferable from the ﬁ rst principle through the following: The elements of a

criminal offence describe speciﬁ c states of affairs that should not obtain. In other words:

punishments for having caused speciﬁ c events in the world entail the judgment that

these events should not have occurred. Criminal provisions impose a duty on everyone

to refrain from bringing about what is described by the elements of the offence. But if

states do not have a claim on the content of other minds and if duties are correlatives

of claims, states cannot impose duties to not bring them about. Without competence

to stipulate mental duties, no one can be punished for violations.

III.5. Negative Sanctions

While the prohibition of thought–crimes is rooted in a long legal tradition, cases such

as Doe provide the real challenge for the scope of the right. Can a state legitimately

sanction persons (non-punitively) for having thoughts even though they have a right to

these thoughts? As argued, the state cannot command Doe to refrain from entertain-

ing sexual thoughts. Furthermore, imposing sanctions for thoughts interferes with his

freedom. Again: states can put negative sanctions on manifested thoughts within the

limits of freedom of speech, but here we are interested in non-expressed thoughts.

Admittedly, legitimate security interests cannot be ignored. Yet the provisions do

not allow for limitations of the forum internum. The deeper problem is its delineation

from the forum externum. The law requires to strictly separate these two factually

highly interrelated domains. Whatever happens in the external world can change the

inner world of persons, and vice versa, every action in the outside world originates

from internal springs. Presumably the best theoretical place to demarcate the fora are

“intentions”. Intentions lie between the inner and the outer. On the one hand, they are

surely thoughts, but on the other, they belong to actions, their company turns bodily

movements into actions proper. Because of their dual nature, I am inclined to suggest

that the full protection of Art. 9 cannot apply to ﬁ rm intentions. If security agencies

become aware of ﬁ rm “evil intentions”, they have to have the right to step in, of course

observing any other rights of purported offenders. Nevertheless, intentions are not

actions (yet), and they have to enjoy some kind of legal protection.

Suppose a device could monitor intentions and report “evil intentions” to the police

(or even stop their execution).84 Obviously, this would interfere with some right of the

84 In fact, devices that allow disabled persons to move artiﬁ cial prostheses by intending to move their

own limbs are close to this; Stephen Scott, Neuroscience: Converting thoughts into action, Nature

2006, 141.

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monitored person, although the device does not read out other thoughts. There has

to be another, non absolute right to mental privacy. Likewise, there has to be a right

against interventions altering intentions insofar as they fall out of the scope of Art. 9.

Thus, while ﬁ rm intentions may provide sufﬁ cient ground for security measures, they

cannot remain unprotected. Rather, a right against monitoring and altering intentions

has to be balanced against security interests. As it is already a substantial concession

to the latter to not grant full protection to ﬁ rm intentions, it would not be justiﬁ able to

stretch the realm of legitimate security concerns further into the mind covering pure

thoughts as in the case of Doe. Otherwise, given omnipresent security worries, the

idea of internal freedom of the persons quickly erodes.

III.6. Limiting Interventions

The ﬁ rst principle denies that interventions into thinking process can be justiﬁ ed by a

duty of the affected persons to be in that mental state. However, many interventions

could be justiﬁ ed on other grounds. This raises the question whether any intervention,

regardless of its supporting grounds, should be prohibited by Art. 9. Evidently, the

right must, as a third principle, prohibit interventions manipulating thinking processes,

a position widely shared in commentaries: “No one cannot be subjected to treatment

intended to change the process of thinking.”85 However, taken literally, state schools

and universities would have to be shut down immediately. This criterion is too broad.

The interpretation of Art. 9 has to acknowledge that we all – as well as the state and

its agencies – change each others’ minds and thoughts all the time. The starting point

cannot be a complete prohibition of changing thoughts. Rather, lines between permis-

sible and impermissible interventions need to be drawn. Here are some suggestions:

III.6.1. The Hidden Conﬂ ict Between Freedom of Speech and Thought

Communication via speech and audiovisual means regularly does not infringe with

freedom of thought. The coerciveless force (“zwanglose Zwang”, Habermas) of ra-

tional argument and even rhetorical persuasion do not violate freedom of thought. On

the contrary, it expresses the spirit of the provision: free and uncensored exchange of

ideas. Here, the historical development has to be taken into account. Due to this, edu-

cation that enables persons to understand the world, make intelligent judgments and

teaches the art of criticism does not interfere with free thought. By contrast some forms

of indoctrination may do so. Concededly, teaching is never free from ideology and ﬁ ne

lines need to be drawn. But this does not undermine the legitimacy of the distinction.

By contrast, speciﬁ c forms of communication bypass rational capacities of the

recipient and do not engage with him as a rational free thinker but seek to exploit his

cognitive weaknesses (e. g. some forms of advertisement). They may interfere with

freedom of thought. When indoctrination and propaganda cause worries, why should

other instances of sophisticated and primarily non-rational communication never do so?

Support for this contention can be found in judgments regarding freedom of religion.

In a leading case, Kokkinkais v. Greece, the ECtHR held that proselytism, the attempt

to convert others, is an exercise of religious freedom (forum externum).86 However,

the right of believers to remain free form unwanted conversion attempts is likewise

85 See supra footnotes 16–18.

86 Kokkinakis v. Greece (App. 14307/88) Jud. 25 May 1993

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protected by Art. 9 (forum internum). Thus, both the missionary and the believer can

appeal to Art. 9 and balances have to be struck. The court held that restrictions of

proselytism are not necessary in a democratic society as long as conversion attempts

do not involve “improper means” such as pressure, physical violence, brainwashing,

unreasonable propaganda or more generally those “not compatible with the freedom

of thought, conscience and religion of others”.87 Hereby, the court recognizes that a

deﬁ nition of “impermissible interferences” is itself an exercise of balancing rights. In the

Larissis case, the court upheld a conviction of high-ranking ofﬁ cers who tried to convert

lower-rank soldiers to Jehova’s Witnesses.88 Due to the hierarchical relationship in the

army, the conduct of the ofﬁ cers could be deemed “improper” undue inﬂ uence.89 Thus,

in special social situations, improper persuasion is possible even through ordinary

means of communication.

I suggest that these criteria should, by and large, be transferred to interferences

with freedom of thought. The structure of the conﬂ ict is identical: The person trying to

persuade another can appeal to free speech which has to ﬁ nd its boundaries in the

listener’s freedom of thought. Thus, there is a conﬂ ict between freedom of speech

and thought which is rarely made explicit in constitutional and human rights theory.90

Freedom of thought as the right to be free from stimuli inherently conﬂ icts with free

expression as the right to send stimuli. Thus, they have to be brought in harmony,

for which there are two possible solutions: Either, all stimuli protected by freedom of

speech are not considered interferences with the forum internum, or the two rights

have to be balanced against each other. As freedom of speech covers many stimuli,

inter alia, many dubious forms of advertisement, the ﬁ rst solution would severely limit

the scope of the forum internum. This speaks for the balancing solution along the lines

of “improper” inﬂ uence in proselytism. As the threshold there is, on a closer look, rela-

tively low, there is no reason to assume that e. g. advertisement may never constitute

improper inﬂ uence. More scholarly attention with a view on psychological research

should be devoted to this.

III.6.2. Non-communicative, Direct Interventions

What about interventions not communicative in nature, such as pharmaceuticals or brain

stimulation? Insofar as they have more than trivial effects on thought, they interfere with

the forum internum and are not justiﬁ able. Again, it would run against the essence of

freedom of thought if direct interventions into thought processes were permissible. And

due to its absolute nature, such interventions are not even allowed for highly laudable

goals such as “moral enhancement”. If direct interventions are prohibited across-the-

board, some state practices are in need of reconsideration. Coerced medications to

render defendants competent to stand trial or to be executed clearly involve manipula-

tion of thinking processes and should be outlawed. Likewise, forcible interventions into

minds of witnesses to enhance testimonies run afoul of Art. 9-1.91

87 Ibid, 48

88 Larissis v. Greece (App. 23772/94) Jud. 25 Feb. 1998

89 Clare Ovey/Robin White, The European Convention on Human Rights. 4th Ed. Oxford University

Press 2006, 309

90 The right to free speech is primarily understood in the relation between sender and a censuring state

in between, while the basic relation between the sender and receiver are neglected. Of course, the

problem only arises with horizontal applicability of the right.

91 The exact scope and limits of witness’ duties deserves more attention.

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III.7. Neuroimaging / Mind Reading

In regard to technologies that detect brain activity, the law seems to be pretty clear. If

freedom of religion entails a right against revealing one’s belief, freedom of thought

must guarantee the same with respect to thoughts. Insofar as brain signal detection

allows reading out thoughts or drawing conclusions about mental states, its use without

consent interferes with freedom of thought. However, one could cast doubts on the le-

gitimacy of this strong protection. At times, the literature speculations about the reasons:

“Perhaps the explanation for this positive afﬁ rmation of freedom of thought … is that there

are unlikely to be good reasons why the state needs such information, but there are undoubt-

edly many bad ones, especially when one bears in mind the Inquisition and the coercive

investigations of totalitarian regimes”92.

This is hardly a satisfactory explanation. In spite of all bad reasons, there are undoubt-

edly some good ones. Consider drastic cases: terrorists and ticking bomb scenarios.

Pressing state interests to know what others won’t reveal are easily conceivable, and

persons may even be under legal duties to speak. Strong rights have to be justiﬁ ed

in light of those cases, and slippery-slope worries, though legitimate, do not seem to

prevail over important state interests. Yet once again, the interpretation of positive

law does not leave much room for free interpretation: no one has to reveal his inner,

unexpressed thoughts against his will, and if these techniques aim at precisely this,

they require consent.

In regard to current technologies that detect neuronal correlates of conscious

thought, persons have a good chance of subverting the procedure simply by moving

their head in the scanner, spoiling the data. They could also just think about something

else. Refusal of participation could be held against persons only if they were under an

obligation to participate, but this would violate the ﬁ rst proposed principle. The same is

true for the use of techniques that elicit automatic brain responses to read out “mental

information” such a brain-ﬁ ngerprinting. From this, we derive the fourth principle: no

revelation of thoughts without prior approval of affected persons. States should be

obliged to inform persons, perhaps in a manner similar to no-self incrimination clauses:

In the scanner (or on the premises of the airport), you have the right to think whatever

you want, but your thoughts can be used against you.

III.8. Tools

Finally, some words about the liberty to use neurotools to change one’s own style of

thinking. The key distinction to be drawn is between outlawing particular mental states

as such or the means to attain them. The former violates the ﬁ rst principle, the latter

may not. There are good arguments why the use of enhancements should enjoy strong

legal protection. After all, it is in a sense a re-conﬁ guration of one’s own self, an intimate

and strongly self-regarding matter which cannot be outlawed for trivial reasons. Nev-

ertheless, this interest cannot be encompassed by the absolute protection of freedom

of thought. One cannot close the eye towards the imminent dangers of psychoactive

substances and social interests in the mental fabric of society. Changing minds of indi-

viduals may, after all, change the “psyche of society”.93 Unlike the other principles, the

92 Harris et al. (Fn.5), 429

93 See Reinhard Merkel et al., Intervening in the brain. Changing psyche and society, Springer 2007

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idea of unrestricted access to enhancement substances is not one that is embedded

in the historical notion of free thought, and I do not see a compelling argument why

denying it should be a priori illegitimate. The interest to change one’s mental realm is

high-ranking, but not absolute.

Conclusion

The proposed reconstruction of the scope of the right entails four interrelated principles:

First, states do not have claims over thoughts of citizens. Thoughts are understood

broadly including mental states such as fantasies, opinions, desires, inner images and

perhaps even dreams and emotions. The brain machinery that underlies these men-

tal states has to be encompassed, too. Secondly, cogitationis poenam nemo patitur.

Thirdly, protection against unwanted intrusions into the mental realm through direct-

brain interventions such as electric stimulation or pharmaceuticals. Fourthly, no one

has a duty to participate in mind-reading investigations.

Even in light of this basic and weak construction, the absolute nature of the right

has to be reconsidered in view of some interferences: coerced psychiatric interventions

alter thoughts of patients but, at least from an ethical point, have to be justiﬁ able in

some cases. There is no way around a narrow exception clause, for which I suggest

two central conditions: Patients have to be incompetent to make decisions, a substi-

tute decisionmaker consents to the treatment, and in addition, the treatment has to

promote the long-term wellbeing of the affected person herself, so that a retrospec-

tive endorsement by the patient at the time he will have regained competence can

be expected. Interests of others, by themselves, can never justify interferences with

the forum internum (e. g. competence to stand trial). Certainly, one can argue about

these exceptions taking into account the many well worked-out ethical theories for

the justiﬁ cation of paternalism. My point here is merely that (narrow) exceptions have

to be deﬁ ned, otherwise coerced psychiatric interventions have to be outlawed. Sub

specie freedom of thought, coerced psychiatry is much harder to justify than current

practice suggests.

Moreover, situated at the borderline between the fora, intentions cannot enjoy full

protection. If security authorities acquire knowledge of “evil intentions”, public safety

must justify some restrictions. Furthermore, communicative interventions protected

by freedom of speech have to be permissible to a large extent, although they alter

thinking processes of the listener. Limits have to be drawn in the grey areas around

undue inﬂ uence.

Without doubt, these exceptions contradict the absolute nature of the right. We wit-

ness here what could be called “the tragedy of absolute rights”. Their supreme value,

reﬂ ected in their absolute nature, should lead to utmost respect. Yet, out of fear and in

light of practical necessities, they are deﬁ ned narrowly or, as in the present case, simply

ignored. Instead of being guiding stars in the constitutional universe, they are empty

provisions, or, to paraphrase Kant, beautiful to look at, yet hollow inside. In the hope

of gaining importance in legal reality, it seems preferable to construct a core meaning

around the suggested four principles and allow for exceptions rather than leaving the

right in its current state.

For the sake of coherence and clarity, it seems advisable to develop an additional

right around the notions of “mental privacy” or “integrity” that deals with cases outside

of the core meaning. Granting the highest rank to freedom of thought while not granting

any protection against less severe interferences would be implausible. This – restrict-

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able – second right would be the proper place to discuss issues such as cognitive

enhancement and detection of mental states via publicly visible behavior.

Those who deny, by contrast, the importance or moral legitimacy of freedom of

thought should be reminded of the century-long struggle for its acceptance and its

constitutive role in a democracy. Although some reasons for its absolute nature turn

out to be false, there are still others. First and foremost, everyone who agrees with

the strong protection of free speech, as critical philosophers certainly do, is almost, by

logical necessity bound to accept similar protection of freedom of thought. Not only is

freedom of thought meaningless without freedom of speech, but also, reversely: any

meaningful sense of freedom of speech presupposes freedom of thought. It is not a right

to utter words, but rather a right to engage in critical discussion, to form one’s opinions,

to accept, weigh and reject reasons, and, as Kant emphasized: to think for oneself.

On occasion, it is said, especially with regard to neuroscience, that the law can-

not share a naturalistic view of the person but has to presuppose the freedom of the

individual. Such a presumption might not allow for the conclusion that freedom of

thought is more fragile than commonly assumed. However, the opposite is true: If the

law were to deny the mind’s malleability by emphatically proclaiming its unassailability,

it abandons the idea of protecting the conditions on which freedom stands. The law

cannot simply close its eyes and declare any weaknesses of the mind as non-existent.

Freedom is not something to be taken for granted but something to be preserved and

protected. And if the law treats persons as free, it has to grant them the legal powers

to remain free – at least from severe external inﬂ uences. In the days of neuroscience,

when neurotechnologies can surmount the natural boundaries of the mind, the law has

to set normative boundaries to secure the freedom of the forum internum.

Anschrift des Autors: Jan Christoph Bublitz, Universität Hamburg, Fakultät für Rechtswissenschaft,

Rothenbaumchaussee 33, 20148 Hamburg

Freedom of Thought in the Age of Neuroscience

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Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitungen in

elektronischen Systemen.

Is Virtually Everything Possible? The Relevance of Ethics and Human Rights for Introducing Extended Reality in Forensic Psychiatry

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Mar 2021

Extended Reality (XR) systems, such as Virtual Reality (VR) and Augmented Reality (AR), provide a digital simulation either of a complete environment, or of particular objects within the real world. Today, XR is used in a wide variety of settings, including gaming, design, engineering, and the military. In addition, XR has been introduced into psychology, cogni-tive sciences and biomedicine for both basic research as well as diagnosing or treating neurological and psychiatric disorders. In the context of XR, the simulated 'reality' can be controlled and people may safely learn to cope with their feelings and behavior. XR also enables to simulate environments that cannot easily be accessed or created otherwise. Therefore, Extended Reality systems are thought to be a promising tool in the resocializa-tion of criminal offenders, more specifically for purposes of risk assessment and treatment of forensic patients. Employing XR in forensic settings raises ethical and legal intricacies which are not raised in case of most other healthcare applications. Whereas a variety of nor-mative issues of XR have been discussed in the context of medicine and consumer usage, the debate on XR in forensic settings is, as yet, straggling. By discussing two general arguments in favor of employing XR in criminal justice, and two arguments calling for caution in this regard, the present paper aims to broaden the current ethical and legal debate on XR applications to their use in the resocialization of criminal offenders, mainly focusing on forensic patients.

Novel Neurorights: From Nonsense to Substance

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Full-text available

Apr 2022

Christoph Bublitz

This paper analyses recent calls for so called “neurorights”, suggested novel human rights whose adoption is allegedly required because of advances in neuroscience, exemplified by a proposal of the Neurorights Initiative. Advances in neuroscience and technology are indeed impressive and pose a range of challenges for the law, and some novel applications give grounds for human rights concerns. But whether addressing these concerns requires adopting novel human rights, and whether the proposed neurorights are suitable candidates, are a different matter. This paper argues that the proposed rights, as individuals and a class, should not be adopted and lobbying on their behalf should stop. The proposal tends to promote rights inflationism, is tainted by neuroexceptionalism and neuroessentialism, and lacks grounding in relevant scholarship. None of the proposed individual rights passes quality criteria debated in the field. While understandable from a moral perspective, the proposal is fundamentally flawed from a legal perspective. Rather than conjuring up novel human rights, existing rights should be further developed in face of changing societal circumstances and technological possibilities.

Closed-Loop Brain Devices in Offender Rehabilitation: Autonomy, Human Rights, and Accountability

Article

Full-text available

Oct 2021

The current debate on closed-loop brain devices (CBDs) mainly focuses on their use in a medical context; possible criminal justice applications have only received incidental scholarly attention. Unlike in medicine, in criminal justice, CBDs might be offered on behalf of the State and for the purpose of protecting security, rather than realizing healthcare aims. It would be possible to deploy CBDs in the rehabilitation of convicted offenders, similarly to the much-debated possibility of employing other brain interventions in this context. Although such use of CBDs could in principle be consensual, there are significant differences between the choice faced by a criminal offender offered a CBD in the context of criminal justice, and that faced by a patient offered a CBD in an ordinary healthcare context. Employment of CBDs in criminal justice thus raises ethical and legal intricacies not raised by healthcare applications. This paper examines some of these issues under three heads: autonomy, human rights, and accountability.

Універсальні міжнародно-правові документи про свободу совісті та захисту від нетерпимості і дискримінації та ксенофобії: проблеми та перспективи розвитку

Chapter

Jan 2021

О. В. Бондаренко

‘Brain-Reading’ in Criminal Justice and Forensic Psychiatry: Towards an Integrative Legal-Ethical Approach

Chapter

May 2021

Whereas brain-reading technologies could, in principle, strengthen forensic psychiatric evaluations, deploying brain-reading in this context also raises fundamental, interwoven ethical and legal questions. Although both in ethics and in the law similar questions arise in this respect, the legal and ethical debates tend to be separated from each other. This chapter aims to provide some further direction on how ethics and the law could learn from each other in the debate on forensic brain-reading. We argue that although ethical analysis can be very informative for the law, we should be careful in extrapolating ethical arguments into the legal debate. Conversely, legal doctrines can—and should—sometimes inform ethics as well.

Three Rationales for a Legal Right to Mental Integrity

Chapter

May 2021

Many states recognize a legal right to bodily integrity, understood as a right against significant, nonconsensual interference with one’s body. Recently, some have called for the recognition of an analogous legal right to mental integrity: a right against significant, nonconsensual interference with one’s mind. In this chapter, we describe and distinguish three different rationales for recognizing such a right. The first appeals to case-based intuitions to establish a distinctive duty not to interfere with others’ minds; the second holds that, if we accept a legal right to bodily integrity, then we must, on pain of philosophical inconsistency, accept a case for an analogous right over the mind; and the third holds that recent technological developments create a need for a legal right to mental integrity.

Freedom of Thought as an International Human Right: Elements of a Theory of a Living Right

Chapter

Dec 2021

Christoph Bublitz

Freedom of thought is one of the core international human rights, enshrined in Art. 18 of the Universal Declaration and almost all subsequent instruments. It enjoys an exceptionally strong level of protection and cannot be limited. However, it does not play a role in legal practice as its contents and contours remain vague. This chapter discusses the sparse case law and suggests crucial elements for future constructions of the right. In particular, it identifies five explananda that theories of freedom of thought need to address, examines the scope of the right as well as tensions between different conceptions of freedom of thought, and proposes an interpretation of the right with a rationalist tone and special emphasis on freedom of belief. It aslo develops a test for, and a taxonomy of, interferences and suggests narrow exceptions to the unconditional protection.

Freedom of Thought and the Structure of American Constitutional Rights

Chapter

Dec 2021

Marc Jonathan Blitz

This chapter looks at how an American constitutional jurisprudence of freedom of thought might both be a component of, and shape the future development of, existing constitutional rights such as the First Amendment right to freedom of speech, the Fourth Amendment right against unreasonable searches and seizures, and “due process” rights against intrusion into bodily liberty. It also looks at how courts have developed a general template for these constitutional rights and considers how an independent right to freedom of thought or “cognitive liberty” might fit such a template—with a core where the right provides close to absolute protection against certain state interference with thinking and a periphery where the state is given more flexibility, for example, in regulating our use of thought-enhancing technology.

Corrigendum: The Autonomous Mind: The Right to Freedom of Thought in the Twenty-First Century

Article

Full-text available

Apr 2021

Simon McCarthy-Jones

[This corrects the article DOI: 10.3389/frai.2019.00019.].

Persuasive technologies and the right to mental liberty: The 'smart' rehabilitation of criminal offenders

Preprint

Full-text available

Oct 2020

Forthcoming in Ienca, M., Pollicino, O., Liguori L., Andorno R., Stefanini E. eds, Cambridge Handbook of Information Technology, Life Sciences and Human Rights (Cambridge UK: Cambridge University Press, 2021).

Brain-Imaging Detection of Visual Scene Encoding in Long-term Memory for TV Commercials

Article

Full-text available

Mar 2001

Brain imaging, by steady-state probe topography, was used to investigate whether a distinct pattern of brain electrical activity in the left or right frontal hemispheres could identify which frames from new TV commercials would be recognized by consumers in an unannounced recognition test one week later. First, confirming previous research, video scenes held on-screen for 1.5 seconds or longer were better recognized. Second, after controlling for scene duration, it was found that video scenes that elicited the fastest brain activity in the left frontal hemisphere were also better recognized. This new finding suggests that the transfer of visual information from short-term memory to long-term memory takes place in the left hemisphere, not the right hemisphere as previously believed. Selection of visual content that produces a fast electrical response in the left-brain hemisphere should help to create highly memorable TV commercials.

The Hidden Persuaders: Then and Now

Article

Full-text available

Mar 2013

Michelle R. Nelson

It has been 50 years since Vance Packard wrote about psychoanalytical techniques employed by the advertising industry in The Hidden Persuaders. This book, published in the post-World War II consumer boom, exposed a mass audience to motivational research at a time when advertisers used new techniques and a new medium. Yet The Hidden Persuaders was highly criticized and became a scapegoat for purportedly promoting subliminal techniques. Nonetheless, the book helped shape public opinion, advertising regulation, and advertising research and practice. This paper provides a historical approach to Packard's contribution and ideas in the context of recent theoretical insights into psychological processing and new persuasion practices.

The New Unconscious

Article

Full-text available

Jan 2005

Over the past two decades, a new picture of the cognitive unconscious has emerged from a variety of disciplines that are broadly part of cognitive science. According to this picture, unconscious processes seem to be capable of doing many things that were thought to require intention, deliberation, and conscious awareness. Moreover, they accomplish these things without the conflict and drama of the psychoanalytic unconscious. These processes range from complex information processing, through goal pursuit and emotions, to cognitive control and self-regulation. This collection of twenty original chapters examines the cognitive unconscious from social, cognitive, and neuroscientific viewpoints, presenting some of the most important developments at the heart of this new picture of the unconscious.

How Happy Is Too Happy? Euphoria, Neuroethics, and Deep Brain Stimulation of the Nucleus Accumbens

Article

Full-text available

Jan 2012

Recent studies on deep brain stimulation (DBS) of the nucleus accumbens (NA)—a center of the brain well known to mediate reward, pleasure, and addiction—have provided proof of principle evidence that DBS might be able to induce euphoria in a rapid, well-modulated manner, with potentially much higher efficacy than previous neuropsychiatric interventions. This development evokes two lines of fundamental ethical questions: If happiness were indeed easily inducible by a button press, are there any ethical, psychological, or social limits of DBS-induced happiness? If happiness might be easily inducible not just in persons suffering from psychiatric disease, but also in healthy persons, are there any intrinsic objections against such an enhancement use of DBS? This study uses systematic ethical analysis of recent observations in NA DBS, illustrated by a case vignette and by published reports on other patients. It was found that the benefit of DBS-induced modulation of affective and motivational states comes in degrees: A change in the DBS settings can transform a salutary state of hedonia into a hypomanic or manic state and turn an enhanced affective state into a maladaptive one. Thus, DBS-induced happiness requires an individual, domain-specific functional analysis, which might reveal context-dependent beneficial and detrimental consequences for a person's life. These consequences warrant careful observation of mood states in persons with NA DBS. There are no convincing intrinsic objections against an enhancement use of DBS. However, the lack of evidence about potential benefits, the risk of severe harm, and the high intervention costs currently pose important extrinsic arguments against use of DBS for enhancement purposes.

Neuroprediction of future rearrest

Article

Full-text available

Mar 2013
P NATL ACAD SCI USA

Identification of factors that predict recurrent antisocial behavior is integral to the social sciences, criminal justice procedures, and the effective treatment of high-risk individuals. Here we show that error-related brain activity elicited during performance of an inhibitory task prospectively predicted subsequent rearrest among adult offenders within 4 y of release (N = 96). The odds that an offender with relatively low anterior cingulate activity would be rearrested were approximately double that of an offender with high activity in this region, holding constant other observed risk factors. These results suggest a potential neurocognitive biomarker for persistent antisocial behavior.

Incriminating Thoughts

Article

Full-text available

Apr 2011
STANFORD LAW REV

Nita Farahany

The neuroscience revolution poses profound challenges to current self-incrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self- Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This Article seeks to reframe the debate. It demonstrates through modern applications from neuroscience the need to redefine the taxonomy of evidence subject to the privilege against self-incrimination. Evidence can arise from the identifying characteristics inherent to individuals; it can arise automatically, without conscious processing; it can arise through memorialized photographs, papers, and memories; or it can arise through responses uttered silently or aloud. This spectrum — identifying, automatic, memorialized, and uttered — is more nuanced and more precise than the traditional testimonial/physical dichotomy, and gives descriptive power to the rationale underpinning the privilege against self-incrimination. Neurological evidence, like more traditional evidence, may be located on this spectrum, and thus doctrinal riddles of self-incrimination, both modern and ancient, may be solved.

A comparative look at the right to refuse treatment

Article

Jan 2006

J. Fischer

Freedom in Belief and Desire

Article

Sep 1996
J Philos

People ordinarily suppose that there are certain things they ought to believe and certain things they ought not to believe. In supposing this to be so, they make corresponding assumptions about their belief-forming capacities. They assume that they are generally responsive to what they think they ought to believe in the things they actually come to believe. In much the same sense, people ordinarily suppose that there are certain things they ought to desire and do and they make corresponding assumptions about their capacities to form desires and act on them. We chart these assumptions in this paper and argue that they entail that people are responsible and free on two fronts. They are free and responsible believers, and free and responsible desirers.

On Cognitive Liberty

Article

Jan 1999

Richard Glen Boire

Part I Thoughts are free and are subject to no rule — Paracelsus 1 As we frantically race into the third millennium, with microprocessors becoming faster, cheaper, and smaller, with surveillance cameras proliferating in public spaces, with the human genome program about to issue its first "working draft" of the human DNA sequence, and with an out-of-control Frankensteinian machine named the War on Drugs, all awhirl in the ocean of modern day culture, it is imperative that we, as a society, expressly acknowledge the fundamental human right to cognitive liberty and immediately begin to define its contours. Encroachments on cognitive liberty can take various forms. New technologies such as biogenetic modification, human-computer interfacing, brain-scanning, nanotechnology, neural-networking, so-called "neuro-therapy," and new pharmaceuticals, raise exciting possibilities for human "evolution." But, if not developed and used responsibly, they and the legislation they spawn, could also pose new threats to cognitive freedom. 2 The trend of technology is to overcome the limitations of the human body. And, the Web has been characterized as a virtual collective consciousness and unconsciousness. What are the implications for mental autonomy when wearable computers become wet-wired to our own minds and memory is augmented by a high-speed wireless connection to the Web? Similarly, advances in biotechnology and drug-design increasingly raise legal and ethical questions related to cognitive liberty, including what rights people will have to access these and other technologies, and what rights we will have to avoid them.

Human Enhancement for the Common Good—Using Neurotechnologies to Improve Eyewitness Memory

Article

Jun 2010

Neurotechnologies that are currently applied to treat a range of neurological and psychiatric diseases were found to have a number of positive side effects on cognitive functioning in healthy individuals. Consequently, these neurotechnologies could in theory be used for cognitive enhancement purposes, for instance, the improvement of eyewitness memory. Improving the process of collecting eyewitness testimony would be of great value and is an example of cognitive enhancement for the common good. In this article, we discuss the epistemological and ethical issues such use raises. These issues are not only critical to using neurotechnologies to improve eyewitness memory, but have a wider scope. By discussing enhancement for a purpose that is not primarily self-regarding or self-serving but potentially benefits the society as a whole, we reflect on the consequences of accepting enhancement for the common good for the acceptability of cognitive enhancement in general.

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