Copyright (c) 2006 University of North Carolina School of Law
First Amendment Law Review
ARTICLE: NEUROSCIENCE AND THE IN CORPORE-TED FIRST AMENDMENT
4 First Amend. L. Rev. 181
Rodney J.S. Deaton*
Late in the October 2002 term, the Justices of the Supreme Court decided the case Sell v. United States in which a criminal defendant pleaded to the Court to forbid his treating psychiatrists from forcing the administration of antipsychotic medication that would render him competent to stand trial. 1 Sell raised questions about a criminal defendant's "right to refuse treatment" - an issue that courts and commentators have debated quite loudly for many years. 2
Yet Sell, written by Justice Breyer, is itself a relatively quiet opinion, at least as far as Supreme Court opinions often go - short in length and calm in rhetoric. 3 Sell is a straightforward extension of the Court's previous cases on forced antipsychotic medication. 4 In this case, as in those earlier cases, the Court carefully delineated the right of defendants to refuse treatment as one protected under the Fifth Amendment's Due Process Clause. 5 This quiet opinion is especially interesting, though, for what it did not address and what may be unavoidable in the near future. Justice Breyer never mentioned the First Amendment's Free Speech Clause as a constitutional basis for the right-to-refuse-treatment doctrine. 6 Yet, for more than twenty years, judicial opinion 7 and academic commentary 8 have articulated that this right should be based on First Amendment grounds. Furthermore, the briefs filed in Sell were anything but silent on this issue, whether arguing for 9 or against 10 the expansion of the right to refuse medication to ...
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