Addiction and Liberty

Abstract

This Article explores the interaction between addiction and liberty and identifies a firm legal basis for recognition of a fundamental constitutional right to freedom from addiction. Government interferes with freedom from addiction when it causes addiction or restricts addiction treatment, and government may protect freedom from addiction through legislation empowering individuals against private actors’ efforts to addict them without their consent. This Article motivates and tests the boundaries of this right through case studies of emergent threats to liberty made possible or exacerbated by new technologies and scientific understandings. These include certain state lottery programs, addiction treatment restrictions, and smartphone applications.


The right to freedom from addiction is supported by the nation’s history and tradition. In addition to addressing emergent threats to the freedom of thought, the right links together longstanding aspects of constitutional law assumed to be sui generis, including longstanding (until the 1970s) constitutional prohibitions on state lotteries, the exemption of gambling from direct First Amendment protection, and heightened state interests in controlling addictive drugs. The right to freedom from addiction is also an antisubordinating liberty because it connects the historically marginalized interests of people with substance use and gambling disorders with the increasingly mainstream movement to regulate big tech.

Keywords: addiction, liberty, health law, constitutional law, mental health, substance use disorder, methadone, lottery