3. Drug use and The First Amendment -- A Right?

Professor Polsby draws an interesting parallel between pornography and drug use. His argument is designed to make the point that even when a thing might be appropriate for adults but is an evil for children (books or motion pictures with adult content), we do not ban adults from using the material. We should not child-proof the world, he notes approvingly. He anticipates the rebuttal that this is "a First Amendment case to be sure,"[24] which suggests a wholly different point regarding the First Amendment.

In an important respect, drugs are like speech or they are like books -- and their use should be protected by the First Amendment. The purpose of the First Amendment is to protect our ability to make up our mind. The purpose was not simply to protect the printing business -- it was to protect our ability to obtain information and ideas. We have extended the protection of the Freedom of Speech and of the Press beyond the reach of the words in the amendment to include poetry, song, motion pictures, paintings, photographs, the internet, expression of all kinds, even when the expression is obtuse, obscure, or offensive. The purpose of the amendment is ultimately to protect the ability of the viewer, the listener, the experiencer, to have the ideas, thoughts, experiences, or emotions the expression might generate. The purpose is not simply to protect the maker of the sounds or images. We protect the ability of the audience members, the readers, the listeners, and the experiencers, to be uplifted by music, to be enthralled by opera, to be made joyful, to be saddened, to be enraged, to empathize as a consequence of the external stimulation we characterize now as "expression." The purpose is to provide for whatever emotional or intellectual experience humans are capable of that can contribute to making up one's mind. The taking of various drugs triggers the same kinds of experiences.[25]

In a more concrete sense, when a person reads, watches or listens, the sensory signals to the eyes or ears are converted into chemical signals that are transmitted through the central nervous system to various parts of the brain and provide stimulation of thoughts, memory and meaning. Drugs do the same thing. Drugs affect the chemical signals that are transmitted through the central nervous system. They are another form of stimulation of the mind. If constitutionally protected speech makes a person laugh, should not the person have a protected right to choose the direct chemical stimuli that they believe will make them laugh, using marijuana or nitrous oxide, for example? If a person can choose a work of philosophy to try to understand meaning and existence, isn't the choice of ingesting a chemical that may have the same effect protected? If constitutionally protected advertising can stimulate appetite, should not the person who is the target of the advertising -- often unwilling or unwitting -- have the right to choose a chemical means to directly stimulate appetite?

Our law, our courts, and our society condemn censorship when forms of expression are banned, recognizing that such measures violate the First Amendment to the Constitution. We fully appreciate the outrage of the audience deprived by censorship of their right to receive information, as well as the outrage of the author at the suppression of his or her work. Rarely is the audience prosecuted. For example, those who went to hear Lenny Bruce or 2 Live Crew did not risk being arrested. However, in punishing drug users for the simple possession of drugs, we not only deprive an audience which chooses the stimulation, we persecute it.

But the analogy to censorship is much too limited. As noted above, peyote is a schedule I controlled substance which is the sacrament used in the worship of the Native American Church of North America. When people are denied the right to use these kinds of compounds under the drug laws for these kinds of purposes, these laws become indistinguishable from religious persecution.[26]

Those who insist that they have the right and the power to deny other citizens the right to experiences in and of their minds -- in order to protect them from "drug abuse" -- are usually proud that they have never used drugs. It is as though we entrusted prosecution, judgment and sentencing in obscenity cases to those who never actually looked at the material in question.

Neuro scientists have located throughout the brain anatomical structures, called receptors, which react uniquely to various drugs, including tetrahydrocannabinol, the principal active ingredient in marijuana. Researchers have found the chemical that is endogenously produced which uniquely activates that receptor, which the discoverers have named anandamide. The brain is filled with receptors that are activated uniquely by THC and its endogenously produced twin. When these receptors are activated, and they can be activated only by these chemicals, then a person has the experience of being intoxicated by marijuana. If one believes that humans have been created by God, including all of the intricate structures in our body such as the eye and the brain, then one might say, "we have been hard-wired by God to get stoned." In essence, those who claim the power to prohibit the use of drugs such as marijuana claim the power to declare portions of the brain of other citizens to be "off limits" to them.

Of course, this asserted First Amendment right to use drugs is unrecognized. It is unrecognized in the same manner that the right of women to vote was not recognized or protected until the Nineteenth Amendment took effect in 1920. What is the scope of this right? I suggest that the right to use drugs is subject to regulation in some respects to protect the public just as the First Amendment is limited by libel law, or newspapers are regulated by antitrust law.

If we find that there seems to be much in the drug experience that is cheap or base, it is perhaps because that the cheap and base is the greater share of human experience. If we examine the totality of the popular literature, popular music, or other arts, we would find that the mediocre outnumbers the outstanding. For most forms of expression quality is extolled and promoted. If a musical composition or performance is especially pleasing, we are delighted and we recommend it. Similarly, if a poem, a prayer, a play, or a novel is well-done or inspirational, we recommend it and encourage its reproduction. A bad work of art disappears as lacking popular appeal.

However, the situation involving good and bad drug experiences is largely reversed. Bad drug experiences are well-recorded and frequently well-reported. The newspapers are quick to report drug overdoses and poisonings. The exaggeration of these experiences is deliberate. U.S. Senator Abraham Ribicoff, commenting at hearings on LSD in the 1960s said, "Only when you sensationalize a subject matter do you get reform. Without sensationalizing, you don't."[27] At their most catastrophic, unsuccessful drug experiences are referred to the emergency rooms of hospitals, or to morgues and medical examiners. While unsuccessful First Amendment experiences are rarely so severe, clinicians report that persons are disturbed by motion pictures they witness and from other protected speech. At another level, those writings that led to the holocaust and World War II, such as Adolf Hitler's Mein Kampf, are found in libraries throughout the United States.

Because a good drug experience is illegal, the role of drug use in the experience is often hidden, disregarded or discounted. How often does the discoverer, the scientist, the inventor announce that his or her insight was aided by using LSD or marijuana? To do so would risk having the result discounted, no matter what its objective merit. Therefore the drug experience is usually hidden. To argue that the use of a drug had a positive effect is sure to elicit the inevitable rejoinder, "what about the addicts, the crimes, the lives wasted?"

Yet in 1995, Dr. Kary Mullis, the 1993 Nobel prize laureate in chemistry said, "I think I might have been stupid in some respects, if it weren't for my psychedelic experiences."[28] When an idea is expressed as the fruit of a drug experience, the idea is attacked a priori as inferior or ridiculous, and the speaker is attacked as "pro-drug."

Inevitably, all non-prohibition drug policy ideas are now challenged with, "what about crack cocaine?" Indisputably, crack cocaine is viewed as the great demonic drug of our time. The image of the most degraded drug addict is no longer associated with heroin, but with crack. It is the image of the "skeezer," a coke whore who will routinely and repeatedly perform fellatio for $10 to buy a rock of crack.[29] Of course, in the public mind, the crack addict is not a person deserving pity or empathy (or the opportunity for treatment), but an object for revulsion, disgust, contempt and malevolence. Society is quite comfortable kicking a man when he is down, if he is a crack addict. The public image of crack is hard-core cocaine addiction,[30] and all the worst social disorder associated with addiction to prohibited drugs. There is a great deal of violence in the crack markets.[31] But much of crack's status is the result of media exaggeration.

Given crack's bad reputation, is there a First Amendment right to use crack, per se? The Supreme Court has upheld prohibition of obscene speech on the ground that obscenity does not convey any ideas.[32] One might ask, what "ideas" does someone get from using crack? A First Amendment absolutist might say, "The use of crack is part of a right to choose the stimulation of one's central nervous system and the impressions one feels irrespective of the drug chosen or the feeling generated." One inclined to avoid being quoted making a socially outrageous claim might say, "While the right to seek and achieve such stimulation may apply to the use of entheogens or psychedelic drugs, crack use as it is actually experienced is such a different kind of drug use, it is not so protected."

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