Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information

Abstract

In the twenty-first century, people’s minds are subject to unprecedented influence. Electronic devices can read emotions and influence thoughts. However, constitutional theory and doctrine on free thought are unprepared for these forms of manipulation or “cognitive content moderation.” To clarify freedom of thought and make it more useful, this Article presents a novel information-based theory of mind, which frames thought in terms of information flow. This theory bridges the divide between First Amendment theory and doctrine on free thought, which are underdeveloped and underutilized, and free speech theory and doctrine, which are robust and frequently employed.

Framing thought in terms of information flow has several benefits. It allows the application of existing free speech doctrine to freedom of thought. For instance, the well-established First Amendment right to receive information and ideas can be applied to cognitive processes such as thought and recollection. These phenomena require the transfer of information from subconscious brain regions to one’s conscious mind, which can be considered a listener for First Amendment purposes. Framing thought in terms of information flow also suggests the existence of a right to receive subconscious information, which protects listeners from coercive cognitive content moderation. The government interferes with this right by impeding the flow of mental information or restricting access to technologies that promote it. The government can defend the right through legislation that protects people from private actors who engage in cognitive manipulation. Finally, framing thought in terms of information flow defends freedom of thought’s status as a fundamental right at the core of the First Amendment.

After describing the right to receive subconscious information and how existing theory and doctrine support it, the Article applies it to four cases of cognitive content moderation. It explains how the information-based theory of mind intersects with First Amendment doctrine on commercial speech, government speech, and compelled speech. The Article concludes by discussing potential objections and proposing sensible limits to address them.

Keywords: First Amendment, Constitutional Law, Freedom of Thought, Neuroscience, Neuralink, Cognition, Free Speech, Fundamental Rights, Brain Chip, Psychedelic, Psilocybin, Dimethyltryptamine, Content Moderation, Subconscious, Censorship, Right to Receive, Information, Speech, Expression, Severance