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

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 nonrational 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. 1. This Note employs the term “compelled perception” in order to include all types of propounded messages, but is mindful of the more commonly suggested term, “compelled listening.” See, e.g., Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, 89 B.U. L. REV. 939, 940 (2009). This Note does not advocate that no one should be forced to perceive any message by any party. Instead, it argues that the government may not force private Americans to perceive “non-rational” messages. See Kelly Sarabyn, Prescribing Orthodoxy, 8 CARDOZO PUB. L. POL’Y & ETHICS J. 367, 368-69 (2010) (defining non-rational information as generally playing to emotions rather than logic). While Sarabyn would limit all non-rational governmental speech, id., this Note advocates that only compelled non-rational governmental speech must be limited under the right against compelled perception. See infra Part IV.A. 205 FERONY FINAL 51313.DOC 206 WESTERN NEW ENGLAND LAW REVIEW [Vol. 35:205 INTRODUCTION: FORSTER’S GOBLINS AND the goblins—they had not really been there at all? They were only the phantoms of cowardice and unbelief? One healthy human impulse would dispel them? Men like the Wilcoxes, or ex-President Roosevelt, would say yes. Beethoven knew better. The goblins really had been there. They might return—and they did. It was as if the splendour of life might boil over and waste to steam and froth. In its dissolution one heard the terrible, ominous note, and a goblin, with increased malignity, walked quietly over the universe from end to end. Panic and emptiness! Panic and emptiness! Even the flaming ramparts of the world might fall. Beethoven chose to make all right in the end. He built the ramparts up. He blew with his mouth for the second time, and again the goblins were scattered. He brought back the gusts of splendour, the heroism, the youth, the magnificence of life and of death, and, amid vast roarings of a superhuman joy, he led his Fifth Symphony to its conclusion. But the goblins were there. They could return. He had said so bravely, and that is why one can trust Beethoven when he says other things. Forster’s goblins, the manifestations of personal demons, creep up from time to time—extant in the night hours of the psyche, extinguished in day. The State seeks to employ these goblins as tools for paternalistically manipulating Americans’ decision-making processes. These goblins might be gruesome images or harrowing noises so long as the end result is a reduction in unpopular behavior. However, “[t]hose who begin coercive elimination of dissent soon find themselves exterminating the dissenters;” accordingly, government compelled perception of Forster’s goblins “achieves only the unanimity of the 2. E.M. FORSTER, HOWARDS END 34 (Vintage Books 1989). One of the major themes of Forster’s works is the short step between the “splendour of life” and “panic and emptiness.” Id. His “goblins” bridge that gap, and are similarly employed in this Note in reference to the government’s use of personal demons to paternalistically manipulate decisions by evoking “panic and emptiness.” 3. See infra Appendix (proposed cigarette warning labels); see also infra Part II (explaining how and why the tobacco warning labels were conceived in order to manipulate emotions). 4. See infra Part III (explaining how and why certain abortion legislation has been enacted to dissuade abortion-seekers). “[T]he purpose of the ultrasound requirement was to reduce the number of abortions.” Sarah E. Weber, An Attempt to Legislate Morality: Forced Ultrasounds as the Newest Tactic in Anti-Abortion Legislation, 45 TULSA L. REV. 359, 365 (2009) (paraphrasing a phone conversation with Oklahoma state Senator Todd Lamb, a proponent of one of three state regulations forcing sonograms for those seeking abortions); see infra notes 7-10 (discussing the posture of Oklahoma, North Carolina, and Texas sonogram regulations). See generally infra Part III. FERONY FINAL 51313.DOC 5/15/13 2:44 PM 207 2013] COMPELLED PERCEPTION