Marks on Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information @MasonMarksMD @FSUCollegeofLaw

Mason Marks, Florida State College Law; Harvard Law School; Yale Law School; Leiden Law School, Center for Law and Digital Technologies, has published Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information. Here is the abstract.

In the sci-fi television series Severance, employees of Lumon Industries receive brain implants that segment their memories of work and home life. When they arrive each morning, implants suppress employees’ access to memories of the outside world, including those regarding friends, family, and society. They can retrieve only work-related memories formed within the building. When employees leave work for the day, their implants restore access to memories of the outside world while restricting work-related content. This article presents a novel information-based theory of mind and describes Lumon’s actions as “cognitive content moderation.” This practice regulates the internal flow of mental information and influences thought and behavior. Lumon is a fictional corporation, but emerging neuro-technologies like brain-computer interfaces will make cognitive content moderation a reality. Governments already regulate mental processes. For instance, the federal Controlled Substances Act prohibits consuming psychedelic substances that alter the flow of subconscious information and reveal useful insights (after consuming these substances, people often report receiving helpful messages from ancestors, God, nature, or entities from other dimensions). By limiting the use of psychedelics such as psilocybin and dimethyltryptamine, the government engages in cognitive content moderation. Other emerging neuro-technologies, like Neuralink and Synchron’s brain implants, will expand the public and private sector’s ability to influence internal communications and regulate memory, thought, emotion, and behavior. Most of the brain’s activity occurs subconsciously, and cognitive content moderation primarily affects the flow of subconscious information exchanged between brain modules and sub-regions. Accordingly, the article defines a First Amendment right to receive subconscious information, which limits the government’s ability to regulate cognitive processes by altering or interrupting that flow. This right is supported by existing theory and doctrine that define related rights, including the right to receive information and ideas, to freely operate one’s mind, and to create knowledge. By framing thought and other mental processes in terms of internal information flow, the article attempts to bridge the divide between existing First Amendment theory and doctrine regarding thought, which are relatively underdeveloped and underutilized, and current free speech theory and doctrine, which are robust and expansive. It claims that in addition to influencing the flow of subconscious information, nascent neuro-technologies can render cognitive processes expressive, bringing them further within the First Amendment’s scope. The article concludes by defining the scope and limits of the right to receive subconscious information, addressing likely criticisms, and exploring potential applications. A draft of this article was presented at the 2022 Freedom of Expression Scholars Conference at Yale Law School: https://law.yale.edu/isp/initiatives/floyd-abrams-institute-freedom-expression/freedom-expression-scholars-conference/freedom-expression-scholars-conference-10-2022

The full text is not available for download from SSRN.