The case against blanket First Amendment protection of scientific research: articulating a more limited scope of protection.

Author:Keane, Steve

INTRODUCTION I. WHAT TYPES OF SCIENTIFIC RESEARCH MIGHT SUFFER RESTRICTION? A. Research that Is Primarily Objectionable on Safety Grounds 1. Experimentation on human subjects 2. Research that facilitates weapons of mass destruction B. Research that, Even if Safe, Is Still Objectionable on Moral Grounds 1. Human reproductive cloning 2. Human embryonic stem cell research 3. Human genetic engineering C. A Few Words on Restricting Scientific Publication II. UNDER WHAT THEORY CAN SCIENTIFIC RESEARCH BE PROTECTED BY THE FIRST AMENDMENT? A. Scientific Research as Expressive Conduct B. Scientific Research as an Information-Gathering Precondition to Speech C. Scientific Research as Academic Freedom III. IF SCIENTIFIC RESEARCH QUALIFIES AS PROTECTED SPEECH, WHEN MAY THE GOVERNMENT RESTRICT IT? A. What Is the Intent of the Government Regulation? B. What Are the Government Interests? 1. Health and safety-based interests 2. Morality-based interests C. How Narrowly Tailored Is the Restriction? D. The Issue of Deference CONCLUSION INTRODUCTION

In November 2004, California voters approved Proposition 71, establishing a state constitutional right to conduct stem cell research. (1) By guaranteeing scientists a right to conduct their research unfettered by government intervention, the state intends to attract an army of researchers who will ultimately boost the state's economy with lucrative stem cell applications. For scientists, the opportunity is especially appealing in light of the $3 billion in government funding that California has earmarked for stem cell research over the next ten years. Indeed, other states have scrambled to enact similar measures in the hopes of preventing an exodus of scientists to more research-friendly jurisdictions. (2)

But no state has the power to provide a safe harbor for scientific research if Congress decides to make such research illegal. Rather, the researcher would need to attack the federal ban with an argument grounded in the U.S. Constitution and rely on judicial intervention to overrule Congress. Although due process (3) and equal protection (4) arguments for a scientific right to research have been suggested, the constitutional basis that has received the most attention is the Free Speech Clause of the First Amendment. (5) Many commentators have painted the First Amendment as an obvious protection for cloning research, (6) stem cell research, (7) and even bioweapons research. (8) In contrast, in its 1997 report, the National Bioethics Advisory Commission claimed that "society recognizes that the freedom of scientific inquiry is not an absolute right and scientists are expected to conduct their research according to widely held ethical principles." (9) At least one scholar has implied that there is not even a threshold First Amendment problem with restrictions on scientific research. (10) Unfortunately, however, no court has squarely addressed the issue.

An important distinction that needs to be made at the outset is that of scientific research versus scientific expression. The latter includes scientific publishing and communication and is entitled to normal free speech protection. (11) In fact, the Supreme Court and lower courts have repeatedly indicated, in dicta, that scientific works and scientific expression are protected by the First Amendment. (12) Protection of scientific research, on the other hand, is the thornier question. (13)

Scientific research is not mentioned anywhere in the Constitution (14) and has no obvious textual link to the First Amendment, which provides that "Congress shall make no law ... abridging the freedom of speech, or of the press...." (15) Proponents of a First Amendment right to research derive that right from the Free Speech Clause. (16) Yet "speech" under the First Amendment is an elusive term whose meaning has been debated for over 200 years. Advocates on either side of the right-to-research debate can cite leading constitutional scholars to support their position. (17) One scholar has even argued that science might be entitled to more First Amendment protection than political or literary speech, noting that the framers were men of the Enlightenment, who viewed scientific freedom as essential to democracy. (18)

While it is true that the Supreme Court has construed "speech" quite broadly, protecting such things as prescription drug information, (19) the right to make campaign contributions, (20) the right to exclude members from an organization, (21) and the right to burn an American flag, (22) the Court has never stated that scientific research falls within the ambit of the Free Speech Clause. The closest the Court has come to such a statement was in Griswold v. Connecticut, (23) where the majority noted:

The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach.... Without those peripheral rights the specific rights would be less secure. (24) In 1969, in Henley v. Wise, (25) a federal district court construed the "freedom of inquiry" from Griswold to mean "the right of scholars to do research and advance the state of man's knowledge." (26) Based on this interpretation, the Henley court struck down a state law that penalized academic researchers for possessing or using obscene materials. But there is a distinct lack of subsequent case law to support this interpretation of Griswold's freedom of inquiry and certainly none higher than at the district court level. (27) Moreover, whatever precedential value Henley has is likely limited to its facts, especially given that the research the trial court was protecting more than three decades ago bears no resemblance to the complex scientific research that might be restrictable today. Because of the changed nature of science since the Griswold era, there is reason today to eschew unquestioning approval of all scientific lines of inquiry. (28)

Until modern courts address the issue directly, we are left with speculation and creative debate over the proper scope of free speech rights with respect to scientific research. But as creative as legal scholars might be, it is the creativity and resourcefulness of modern biologists that is really driving most of the debate. Breathtaking developments in our understanding of human genetics, neuroscience, and pathogen proteomics (29) are forcing the legal system to play catch-up, as ethics panels struggle with the implications of new discoveries and potential applications. Stem cell research, including the use of cloned embryos, promises to play a major role in regenerative medicine and will potentially benefit millions of Americans. Likewise, investigation of the structure, behavior, and modification of virulent pathogens may ultimately protect us from bioterrorism. At the same time, however, these areas of scientific investigation carry risks of abuse and demand at least some form of regulation.

This Note explores the question of whether and to what extent scientists are shielded by the First Amendment when government attempts to regulate scientific inquiry. Part I highlights important scientific research that legislatures have attempted to or may wish to restrict. Part I also looks at restrictions on scientific publishing, though the analysis will be confined to that Part, since, unlike research, there is no question about whether such activity qualifies as speech.

Part II sets forth the doctrinal foundation for treating scientific research as speech, using the Spence test (30) as a threshold for expressive conduct. Despite most prior scholarship to the contrary, I argue that framing scientific research as expressive conduct provides the strongest doctrinal footing for securing a First Amendment right. (31) This approach has the virtue of not requiring an independent assessment of what qualifies as scientific research, a judgment that would be fraught with difficulty and bias. Moreover, expressive conduct is firmly rooted in First Amendment jurisprudence and offers predictability over competing theories of protection for scientific research. Part II also discusses two other justifications that commentators have proposed for First Amendment protection of scientific research, both of which I conclude are unpersuasive and misguided in their attempt to secure blanket constitutional protection for scientific research.

Part III explores the circumstances under which government may restrict scientific research that qualifies for prima facie First Amendment protection. Unlike most previous commentators, I argue that the tailoring of a statutory restriction on research as well as the specific governmental interest should be evaluated under the O'Brien test, with significant deference to the legislature on the proffered interest but no deference on the adequacy of tailoring. (32) Hypothetical statutes discussed in Part III will illuminate the importance of careful drafting in this arena.

Because I conclude that scientific research merits prima facie protection under the First Amendment only when it qualifies as expressive conduct, it becomes inappropriate to discuss a freedom of scientific inquiry, per se. Rather, research that meets the expressive conduct threshold will be treated like any other kind of expressive conduct, subject to either intermediate or strict scrutiny. The importance of the science in a particular case may very well be dispositive, but under existing doctrine, the First Amendment affords no blanket protection to scientific inquiry.


    Intellectual freedom is virtually unquestioned in a liberal democracy such as the United States. But few would argue that the pursuit of knowledge should reign supreme over all other human interests. If the Preamble to the Constitution is any indication, then our highest rung of interests...

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