Barry P. Mcdonald, Government Regulation or Other "abridgements" of Scientific Research: the Proper Scope of Judicial Review Under the First Amendment

• Citation: Vol. 54 No. 2
• Publication year: 2005

GOVERNMENT REGULATION OR OTHER "ABRIDGEMENTS" OF SCIENTIFIC RESEARCH:

THE PROPER SCOPE OF JUDICIAL REVIEW UNDER THE FIRST AMENDMENT

Barry P. McDonald^*

The right to search for truth implies also a duty; one must not conceal any part of what one has recognized to be true.

-Albert Einstein¹

INTRODUCTION

The success of the United States, and the prominent role it plays in world affairs, has been due in no small measure to the preeminence of its scientific institutions.²The "hard" sciences produce knowledge about how the natural world works, which in turn results in the power to exert greater control over it through technological applications. The "softer" social sciences yield knowledge about how humans develop, behave, and interact, which in turn results in the ability to exert increasing influence over those processes.

Many Americans would likely attribute the success of science in this country to the freedom of inquiry it has traditionally enjoyed, a concept similar to those of political and religious freedom enshrined in our Constitution. It may therefore come as a surprise to many that, unlike the latter two freedoms which are guaranteed by express provisions of the Constitution, scientific freedom has no comparable guarantee. The closest the Constitution comes to protecting scientific freedom are the First Amendment's guarantees of freedom of "speech" and "press."³Hence the issue of whether scientists can claim constitutional protection against allegedly unreasonable intrusions by the government into the domain of scientific research is a looming and unsettled question in American law.

This question is becoming increasingly important as scientific advances in certain areas, most recently in biotechnology and the genetic sciences, are prompting more frequent calls for government regulation of scientific research. In its last two sessions, for example, the U.S. House of Representatives passed a bill criminalizing a form of biomedical research that aims to extract specialized cells from cloned human embryos for the purpose of developing new therapies to fight disease.⁴That bill has repeatedly become bogged down in contentious debate in the U.S. Senate,⁵but five states recently enacted such a ban on their own, and several others passed some form of research restrictions in this area.⁶Opponents of these measures, including the American Bar Association and legal scholars, contend that they violate the First Amendment.⁷Heightened concerns about bioterrorism have resulted in the passage of several laws over the past few years imposing stringent regulations on certain forms of biological research (including a ban on certain experiments without prior government approval), and a prominent scientific advisory panel recently recommended the enactment of even stricter regulations.⁸Such governmental actions are raising concerns by the general scientific community that the progress of knowledge in important areas of research, some vital to America's national security, will be unduly impeded.⁹Rapidly advancing research into the human genome and the biological basis not only for human disease, but for other physical and behavioral characteristics of people as well, is prompting more and more experts to question whether certain lines of research should be pursued.¹⁰Other examples abound where new areas of scientific research are triggering increased calls for regulation from socially prominent voices.¹¹

Given the importance of the First Amendment status of scientific research in the context of such regulatory actions and calls for further government restrictions,¹²it is surprising that relatively little legal scholarship has focused seriously on that status since a spate of articles appeared in the 1970s and

1980s in reaction to calls for regulation of the newly emergent field of genetic

American Science: A Conversation with Robert C. Richardson, N.Y. TIMES, July 6, 2004, at F2 (interviewing prominent scientist on how post-9/11 regulations have significantly reduced scientific research in certain areas). engineering.¹³Although some of those articles were written by prominent legal scholars, their analyses focused principally on a narrow debate derived from Supreme Court case law of that period. In one camp were scholars who argued primarily that scientific research is protected by the First Amendment because it is conduct that is an essential precondition of scientific speech. In the other camp were scholars who argued primarily that such a principle could not be fairly derived from the Court's jurisprudence to grant protection to research activities.¹⁴I will demonstrate that this debate was framed far too narrowly even with regard to the application of Supreme Court doctrine to this problem, drawing on intervening decisions of the Court since that time as well as pioneering work by First Amendment scholar Geoffrey Stone regarding the Court's overall free speech methodology.¹⁵Moreover, many leading constitutional theorists reject an exclusive focus on doctrinal arguments as a method of interpreting the Constitution. Instead, they consider a variety of interpretive sources, centering on the Constitution's text and structural relationships, its drafting and ratification history, Supreme Court precedent, and value-based arguments derived from this nation's traditions and political culture.¹⁶Ideally, such a comprehensive analysis of the problem of scientific inquiry would do much to dispel concerns, voiced most recently by Cass Sunstein, that the law is "ill-developed" with respect to "whether there is a first amendment right to engage in medical or scientific research."¹⁷

This Article aims to address the need for a more comprehensive analysis of the extent to which the First Amendment does or does not provide scientists, whether from the natural or social disciplines, with constitutional protection to engage in scientific research or inquiry.¹⁸Of course, no constitutional protection is absolute, and in this context it would mean the right to have a court scrutinize restrictions on scientific research in light of the government's purpose for imposing them as well as its sensitivities to First Amendment interests in the manner chosen to achieve that purpose.

Part I begins by exploring exactly what the concept of scientific research or inquiry means, since the specific process or activities envisioned by this concept are relevant to whether it falls within the First Amendment's protection for the freedom of expression. This Part describes scientific research as a process of gathering, analyzing, and disseminating information and ideas that generally has important communicative and noncommunicative aspects, either of which a law can target for regulation. This Part also discusses two general approaches to interpreting the First Amendment that could be used to analyze the issue of constitutional protection for scientific research: one that emphasizes the meaning of the Speech and Press Clauses and one that stresses protection for functions or activities that peculiarly promote core values of that amendment.

Part II analyzes the notion of a right of scientific research based on interpretive methods that emphasize the meaning of constitutional provisions-arguments based on the Constitution's text and the original intent of the founding generation. These methods support an interpretation that the freedoms of "speech" and "press" certainly apply to restrictions on expression associated with the research process. They also show that while those freedoms have no direct application to regulations targeting nonexpressive conduct that is part of the research process, such as the performance of many typical experiments or scientific procedures, the pertinent text suggests those freedoms apply indirectly to such regulations to the extent they burden scientific expression.¹⁹

Part III examines whether modern Supreme Court precedent supports the recognition of a right of scientific research, including an analysis of more recent doctrinal developments that are important to this question. This Part not only explores the applicability of "standard" First Amendment doctrine that focuses on implementing the meaning of the freedoms of speech and press but also that of other lines of cases-particularly those dealing with the "right" of academic freedom-that stress the facilitation of core values of that amendment. It demonstrates that the strongest arguments from precedent support the notion that, while regulations of scientific expression are subject to standard First Amendment scrutiny, the far more common type of research regulation-one that seeks to achieve goals other than the regulation or suppression of scientific expression-receives no direct constitutional protection. Yet, since the latter form of regulation will often create an incidental or indirect restraint on scientific expression, it may still, though not always, be subject to First Amendment scrutiny under the Court's "incidental restraints" jurisprudence.

Part IV considers the strength of relevant value-oriented arguments that might be drawn from the political history and culture of the United States. Those arguments point to the conclusion that while the ideal of free scientific inquiry has been accepted and respected for much of the past century, it is not a practice or tradition that is so deeply engrained in our political history or culture that the recognition of a special constitutional right would be warranted.

Finally, Part V assesses the relative strengths and merits of all of these modes of constitutional argument on this issue. It concludes that the most persuasive interpretation is consistent with the strongest arguments from each of these modes of analyzing the problem: that, while there is no First Amendment right of scientific research per se, research regulations that directly restrict scientific expression are subject to constitutional scrutiny, and those that...