The potential for humans to interface with computers with their minds is very real, and the foundation for this technology is being laid now. Within a century, it is very likely that human beings will not only be able to interface with computers, but that this interface will be a two way street—people’s memories and dreams will be just like any other type of data. A possible application of this technology is the ability to actual have a computer program stimulate the brain to simulate emotions, sights, smells, touches, and other perceptions. Such interfacing is likely to have a dramatic impact on the arts–as well as the First Amendment.

Image Courtesy Paramount

From the first crude paintings on cave walls to computer animation, artists have often taken advantage of the technology around them to create art. As the potential for neural interfacing with computers approaches reality, it will be no different. Indeed, the existence of immersive virtual reality seems much more applicable to the world of art than it does to commerce. Even now, there are many artists who do most of their work on computers—animators, in particular, take great advantage of the time-saving aspects of computer technology. Virtual reality will enable this to rise to an entirely new level. Imagine artists (or, more likely, teams of artists) creating entire virtual works of art that can be explored. Moreover, the potential for art with neural interfacing goes beyond even simply audiovisual. Artists will have at their disposal palettes of colors, sounds, textures, and smells. Surrealists could create worlds with melting clocks, cotton candy clouds, and daffodils that smell like peppermint and feel like burlap. Religious artists would be able to capture the essence of the divine in the flesh.

Narrative art will take a leap forward, as well. Movies could take place in true 3-D, with the audience feeling like they are in the middle of the action—they could smell the gunpowder in the air during a Revolutionary War epic, or taste wine with the Apostles in a tale of Christ’s life. And there’s no reason why this art can’t be interactive, as well. Much like the holodecks in Star Trek, virtual reality can create worlds where, like characters on Star Trek, users have the chance to play their heroes, like Sherlock Holmes, Captain Proton, or the titular Vulcan Love Slave. Additionally, there will undoubtedly be programs that allow people to create their own art easily, simply by conjuring the images in their heads. After all, the difference between neural interfacing and holodecks as described in Star Trek is that with neural interfacing technology, the computer will be linked with the brain of the user. In the movie What Dreams May Come, the protagonist discovered that Heaven was a place where the mind itself is capable of creating anything it can imagine—trees, flowers, lakes, buildings or anything else. With neural interfacing technology, people can do the same here on Earth.

In addition to the ability of artists to capture and rearrange visuals, sounds, tastes, smells and textures, neural interfacing technology also gives the potential to stimulate emotions directly. Scientists have already been able to directly stimulate emotions such as humor and sexual responses. In fact, researchers have also discovered the portions of the brain that, when stimulated, also create the feelings of deep meditation and even mystic experiences. It’s very conceivable that when neural interfacing is developed, these areas of the brain will be stimulated just as the sensory inputs can. This type of stimulation could lead to amazing leaps of creativity. Imagine a virtual painting created not only using sights and sounds, but subtle shades of emotion, as well. This is already done in a crude fashion in movies, where music and visuals are combined to evoke particular emotions. But neural interfacing allows the potential to leap from evoking emotion through the senses to actually creating the emotions themselves. Or who knows? Perhaps even combinations of emotion. Imagine a virtual piece of art that was composed of not only a stirring visual, but was tinged with combinations of sadness and joy in different proportions depending upon where your attention was directed. One can only imagine a future Michaelangelo creating a virtual painting where not only would the viewer see God touch the hand of Adam, but in looking at Adam, the viewer would feel the combination of Adam’s fear and love for God, and in looking at God, the viewer would feel God’s love for Adam, combined with the sadness of knowing that he will fall. The potential for artistic creativity with neural interfacing is virtually unlimited.

However, as with most things, with promise comes peril. The ability to directly stimulate the brain not only has the potential to produce great works of art, but it could be used to manipulate, as well. For years, fringe groups have claimed that rock music contains hidden messages inducing everything from murder to Satanism to suicide. Indeed, many lawsuits have been filed based on such theories. While there’s no real evidence that such “hidden messages” exist, nor any solid evidence that they actually work, the technology of neural interfacing could change that. To be sure, changing somebody’s actions or thoughts would almost certainly be much more difficult than simply stimulating the senses or emotions in the brain, but the potential is there for it to occur. If this should happen, then what are the legal ramifications? Does the law as it exists today provide any protection? What role, if any, does the First Amendment play in a legal analysis?

Are Stimulated Emotions Protected Speech?

The First Amendment of the Constitution states that “Congress shall make no law…abridging the freedom of speech, or of the press.” Back in the late 18th Century, this meant primarily newspapers, books, and vocal speech. The framers of that Amendment almost certainly could not fathom the explosion of media into radio, television, motion pictures, and the internet. Nevertheless, this lack of contemplation has not stopped the Courts from interpreting broadcasts, films, and songs as being protected by the First Amendment. But what about stimulated emotions? The answer here is probably. Since the beginning of the 20th Century, the Courts have been inclined to accept a very libertarian view of the First Amendment. With each new advance of technology, from radio to television to the Internet, the Courts have extended the First Amendment to apply to them. Certainly, immersive virtual realities and websites accessible via neural interfacing would fit easily into the past technological advances that Courts have recognized. Where do stimulated emotions fit in? Most likely, they would be more protected the more they were in the context of art. The Supreme Court has held that “Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee.” Following this line of reasoning, the updated Sistine Chapel that contains God and Adam’s emotions would almost certainly be protected by the First Amendment.

When Stimulated Emotions Are Not Protected Speech

In certain cases, though, stimulated emotions are likely not to be protected speech at all. The first and most obvious time in which stimulated emotions will not be protected speech is when those emotions lead to the incitement of crimes. For example, in Warren Ellis’ comic book series Transmetropolitan, several references are made to the idea of “meme-dropping.” These memes were computer programs that would enter people’s minds and force them to act in a manner they normally wouldn’t. One described example is an “auto-cannibalism” meme. Laws forbidding such stimulation would be permissible under the Constitutional interpretation of the Supreme Court case Brandenburg v. Ohio. In that case, the Court held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” A program that, through a neural interface, causes people to behave violently or lawlessly would meet this standard. Thus, such stimulation would not be considered protected speech.

Where a difficulty may arise in this context is when a combination of stimulated emotions provokes violent or unlawful behavior unintentionally. It does not appear that this would meet the incitement standard cited in Brandenburg. However, it’s possible that tort liability may be found for this on the grounds of negligence. In the past few decades, a similar cause of action has been claimed by some plaintiffs against media companies. These cases argue that certain media, such as television or role-playing games, caused a “psychological mood shift in the speech recipient, causing despondency leading to suicide or self-injury; or, alternatively, causing aggressive and violent behavior resulting in injury to third parties.” However, most of these cases have failed, primarily because the plaintiffs have failed to prove that the media in question was the proximate cause of the injury. In some cases, this is because the Courts have found that the First Amendment bars such liability completely. These cases hold that under the First Amendment, there must be intent to cause the harm—mere negligence is not enough. Other Courts, however, have indicated that they are open to a negligence argument, but have declined to find so far that any such speech has been the proximate cause of any unlawful acts. To date, the Supreme Court has not ruled on this issue.

One argument that may make a negligence liability claim viable, however, might be that the right of privacy is paramount over the right of free speech in these cases. Such an argument could be based on a comparison of manipulation via stimulated emotions to manipulation that is alleged to be caused by subliminal messages. In the case Vance v. Judas Priest, the presiding judge presented a lengthy argument to the effect that subliminal messages were not protected because of the right to privacy. He argued that

“If the right of privacy is to respect the mental processes of an individual, as it does, it must have the ability to foreclose others from secretly intruding into the subconscious of an unwitting individual in an attempt to manipulate his thought processes and ultimately his behavior.”

Further, the judge’s opinion went on to distinguish subliminal messages from traditional speech:

“Traditional speech is consciously heard by the listener whereas subliminal speech is not intended to be nor is it consciously heard by the unwitting listener. Traditional speech may be consciously evaluated by the listener and either accepted or rejected. Subliminal speech is incapable of being consciously evaluated and is intended to influence the listener’s behavior without giving him the opportunity for conscious reflection and consideration before action.

The freedom to exercise one’s thoughts is essential to the exercise of other constitutional rights. If an individual is not protected in his thoughts and behavior, the right of privacy becomes meaningless.”

There are, of course, differences between stimulating emotions and the traditional concept of subliminal messages. Subliminal messages, by their nature, are created with the intent to control thoughts and behavior. Stimulating emotions are not necessarily created for that purpose, nor would they necessarily induce harmful behavior. Where the delineation can be made here is that stimulated emotions that do not induce behavior could be considered protected, whereas stimulated emotions that do would not be. Thus, the Vance v. Judas Priest case could provide a basis from which a plaintiff could argue for liability.

Regulating Stimulated Emotions

Even when stimulated emotions come under the category of protected speech, they would not necessarily be immune from regulation. Certainly, the government would have the power to regulate whether certain stimulations are appropriate for minors. Such emotions, such as sexual stimulation, deep and abiding fear, violent or angry emotions, are going to be within the purview of regulation. But such regulation would have to be narrow and limited. It is unlikely that the Court would uphold a complete ban on any stimulated emotion that fell under the protected speech category.

However, stimulated emotions via neural interfacing bring to bear a special problem in First Amendment jurisprudence: that is the right of a person not to listen. The Supreme Court has ruled on several occasions that a person can be protected from speech thrust upon him when he is in his own home. As the Court wrote in Frisby v. Schultz, “There is simply no right to force speech into the home of an unwilling listener.” In the case of neural interfacing, the right to not have speech forced into one’s mind is just as strong, if not stronger, than the right not to have speech forced upon someone in their own home.

However, the concept of the “unwilling listener” begs the question: how do you determine willingness and unwillingness to receive a particular message? In cases of the home, the Court seems to imply that there must be some indication on the part of the homeowner that the speech is unwanted. For example, in Rowan v. Post Office Dept., the Court found that “junk mail” sent to the homeowner in question violated the “right of the unwilling listener” because the homeowner in that case specifically requested that no junk mail be sent to him. Similarly, in Martin v. Struthers, the Court struck down a complete ban on door-to-door solicitation on the grounds that a person could protect themselves from unwanted intrusion by means of a “No Solicitation” or similar sign. Thus, in the world of neural interfacing, it is likely that some method must be developed to enable a computer user to provide notice that he does not want to have any, or perhaps simply some particular emotions to be stimulated while he is viewing such a piece of art. Alternatively, the artists or host websites of the artists work may provide warnings and consent indicators that the website provides emotional stimulation.

If no such technology is available, then the government may have to step in to provide regulation of emotional stimulation. This is similar to the situation in the FCC v. Pacifica case, where the Court found that regulations on indecent speech broadcast over the radio early in the afternoon were permissible “[b]ecause the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program contact.” Similarly, if there is no way to provide advance warning of either emotional stimulation or no way to provide notice that such stimulation is unwanted, it would likely be permissible for the government to regulate such stimulation in order to protect minors and unwilling listeners.