Freedom of Speech and Religion

Abstract

Abstract This chapter reviews challenges to drug laws brought under the First Amendment, the Religious Freedom Restoration Act, and analogous state constitutional and statutory guarantees. Invoking the Free Exercise Clause, some defendants began to argue in the 1960s that they have a right to use illicit substances for sacramental or spiritual purposes. Invoking the Free Speech Clause, others argued that they have a right to use illicit substances to access new modes of cognition and perception, express dissent, and govern their minds. A small number of Indigenous churches have been granted exemptions to use peyote or ayahuasca, and the “cognitive liberty” case for drug rights has become increasingly prominent in psychedelic reform circles worldwide. To date, though, First Amendment doctrine has not only failed to protect most drug users but also actively shifted power to prohibitionists and pharmaceutical companies and, in so doing, helped make the legal drug market more lethal.