CONSTITUTIONAL LAW—FROM GOBLINS TO GRAVEYARDS: THE PROBLEM OF PATERNALISM IN COMPELLED PERCEPTION

Authors

Peter Ferony

Abstract

Advances in technology have enabled the government to convey its moral judgments in novel and emotionally powerful ways. The FDA’s recently promulgated graphic tobacco warning labels are one such instance of this development; state statutes that mandate sonograms for abortion-seekers are another. Taking this strategy even further, it is conceivable that the government, under the guise of informed consent— and facilitated by data-mining and psychological methodology—could effect a profound change on American decision-making.

This Note argues that when the government forces Americans to perceive emotionally manipulative messages the resulting infringement on freedom of thought violates the First Amendment. It further demonstrates that, even in the cases of graphic labels and mandatory sonograms, there is inadequate First Amendment protection for the person compelled to perceive the message. Thus, this Note proposes a test with which courts could determine when the government’s non-rational compelled message must be limited in order to safeguard personal First Amendment rights. Such messages trample autonomy, derogate dignity, cast aside freedom of thought and belief, and are thus completely anathema to First Amendment principles. As such, courts must recognize a First Amendment right against non-rational government compelled perception.

Recommended Citation

Peter Ferony, CONSTITUTIONAL LAW—FROM GOBLINS TO GRAVEYARDS: THE PROBLEM OF PATERNALISM IN COMPELLED PERCEPTION, 35 W. New Eng. L. Rev. 205 (2013), https://digitalcommons.law.wne.edu/lawreview/vol35/iss1/7