Abstract
Whether the US Constitution guarantees a right to conduct scientific research is a question that has never been squarely addressed by the United States Supreme Court. Similarly, the extent to which the First Amendment protects the right to communicate the results of scientific research is an issue about which there is scant judicial authority. This article suggests that a crucial guidepost for exploring both these uncharted areas of constitutional law should be whether restrictions on scientific research or communication truly implicate fundamental individual rights or instead primarily concern issues of general social welfare—issues that in a democracy are properly decided by the representative branches of government or their delegates, not by the judiciary.
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Notes
Unlike commercial speech or obscenity, scientific speech is not a juridical category defined in the case law. Nor will any attempt be me made here to rigorously define the term “scientific speech.” Rather, that term will be used informally in this paper to mean communication about experiments, investigations or hypotheses, as well as communication about the application of science and technology.
For a lucid discussion of the distinction between persuasive and facilitative speech, see Scanlon 1972, pp. 211–212. Of course, problematic facilitative speech is not limited to scientific speech Depending on the connection with core free speech values, these other varieties of facilitative speech might be more or less protected than is facilitative scientific information. For an excellent and exhaustive discussion of the First Amendment issues raised by facilitative speech, see Volokh (2005).
Another type of scientific speech that government desires and has the power to suppress are false or misleading scientific claims made in connection with advertisements for commercial products. See, e.g., National Commission on Egg Nutrition v. FTC 1977 (court upholds enforcement of Federal Trade Commission order requiring trade association to cease and desist from disseminating advertisements containing statements to the effect that there was no scientific evidence that eating eggs increased the risk of heart and circulatory disease). Such cases, however, do not deal with the value of scientific speech as such but rather turn on the well-established First Amendment rule that false or misleading commercial advertising is not entitled to First Amendment protection (Central Hudson Gas v. Public Service Commission 1980). Accordingly, unlike an egg trade association, a person not associated with the egg industry would likely have a First Amendment right to publish an article in a scientific journal claiming that that there was no scientific evidence that eating eggs increased the risk of heart disease. Yet another type of scientific speech that the government might want to suppress and arguably has the power to do so consistent with the First Amendment is publication of data produced by highly unethical experiments such as those performed by Dr. Josef Mengele on Auschwitz prisoners. See Mostow (1994).
The primary focus will be on regulations that directly forbid private speakers from communicating scientific information to other scientists or to the public. Space limitation do not permit exploration of indirect restriction on speech, such as governmental refusal to disclose information within its control, or restrictions imposed by means other than coercive laws, such as by contractual agreements. Nor is there space to consider restrictions on the speech of scientists employed by the government.
A recent real life example of speech that is both part of public discourse and arguably facilitative of illegal and extremely harmful activity is revelation that the National Security Agency has been secretly accumulating a massive database of the telephone numbers dialed by millions of Americans. While this revelation certainly is crucial to democratic self-governance, it also arguably impaired national security by alerting terrorists of this operation (MacArthur 2007). Another real life example arose with respect to a scientific article modeling a bioterrorist attack on the United States milk supply (Wein and Liu 2005). The federal government asked the journal not to publish the article because it feared information contained in the article could be useful to terrorists wanting to poison the milk supply. After delaying publication while it reviewed the government’s concerns, the journal decided to publish the article, concluding that “[a]ll of the critical information in this article that could be useful to a terrorist… are [sic] immediately available on the World Wide Web through a simple Google search” (Alberts 2005). Since the authors were in part criticizing the current lack of security measures in the industry, they were to this extent involved in democratic self-governance. For other examples, both hypothetical and real, of speech that is arguably both part of public discourse and facilitative of a crime or other activity that government can legitimately forbid, see Volokh (2005, pp. 1114–1123).
The importance of the medium in which a given instance of speech occurs to the process of democratic self-governance is in my view the best explanation of why the Supreme Court rigorously protects nudity in film and cable television—media that are in its view part of the “structural skeleton” of public discourse—but not in live performances by erotic dancers on the stage of “strip club.” Compare Playboy Entertainment Group, Inc. v. United States (2000) with City of Erie v. Pap’s A.M. (2000).
Actual examples of scientific speech that could contribute to public decision making are discussed in Footnote 5, above.
For criticism of the All Inclusive Approach, both generally and as a method for determining the protection afforded scientific speech, see Post (2000, pp. 715–717).
Several years ago there was a series of First Amendment challenges to federal restriction on posting encryption source code on the Internet that the government feared might enable terrorists and other targets of national security investigations to conceal their communications. The indeterminate results of the cases show just how difficult First Amendment questions raised by facilitative scientific speech can be. See Junger v. Daley (2000) (reversing summary judgment against plaintiff challenging the constitutionality of a federal regulation restricting him from posting encryption software on his website but reserving issue of what level of First Amendment scrutiny is applicable); Bernstein v. United States Department of Justice 1999a/b) (2-1 decision finding this regulation to be an unconstitutional prior restraint). Later this same year, the Bernstein decision was withdrawn and rehearing granted by the full court. Before the rehearing could take place, the regulation was amended to exempt “publicly available” encryption source code, which deprived the plaintiff of standing to continue to challenge the regulation (Bernstein v. Dep’t of Commerce 2004).
Not all commentators would agree with this conclusion. Professor Eugene Volokh, for instance, believes that the search for truth about scientific questions should be as protected by the First Amendment core political speech (Volokh 2005, p. 1155). He would thus most likely conclude that Park would have a constitutional right to publish this information.
The word “science” appears but once in the Constitution, in the Copyright Clause, which gives Congress the power to promote science by granting copyright to writings by authors.
I have previously explored the possible constitutional bases for a right to research in Weinstein (2007, pp. 542–550).
The Fifth Amendment, which is applicable only to the federal government, provides that “No person shall … be deprived of life, liberty or property, without due process of law.” The Fourteenth Amendment reads: “nor shall any State deprive any person of life, liberty or property, without due process of law.”
One means by which government has sought to punish thoughts is by requiring people seeking a government job or benefit to answer questions concerning their beliefs (e.g., Schneider v. Smith 1968).
It is not clear how Irwin would classify under her framework partial bans on particular types of research, such as, for instance, a ban on the use of all embryos for stem cell research created for that purpose. The Court’s fundamental rights jurisprudence suggests that such a ban would be considered a direct infringement only if it imposed an “undue burden” on the right of inquiry. (Planned Parenthood of Southeastern Pa. v. Casey 1992; Zablocki v. Redhail 1978).
The lowest level of scrutiny, referred to as minimum scrutiny, requires only that the government’s interest be rationally related to a legitimate interest. This extremely lax standard, which almost never results in invalidation of a law or regulation, is the one ordinarily applicable to liberty interests other than those few recognized as fundamental or otherwise specially protected by the Due Process Clauses.
Interestingly, Irwin also concludes that the Court would, despite the application of strict scrutiny, uphold a ban on human cloning. This conclusion puts in doubt whether despite the label “strict scrutiny” Irwin’s analysis really subjects the ban to the rigorous review the Court usually applies under that rubric. In any event, it is clear the scrutiny she applies in her analysis is something less rigorous than the Court ordinarily applies when a regulation directly infringes a fundamental liberty interest.
See also Barnes v. Glen Theatre, Inc. 1991, p. 575 (Scalia, J., concurring) (“Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered … immoral. … [T]here is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit [prohibitions] simply because they regulate ‘morality.’”) (emphasis added).
References
Alberts, B. (2005). Modeling attacks on the food supply. Proceedings of the National Academies of Science, 102(28), 9737–9738 (Editorial).
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
Bernstein v. Dep’t of Commerce, WL 838163 (N.D. Cal. Apr. 19, 2004).
Bernstein v. United States Department of Justice, 176 F.3d 1132, 1135 (9th Cir. 1999a), withdrawn, rehearing granted en banc, 192 F.3d 1308 (9th Cir. 1999b).
Bowers v. Hardwick, 478 U.S. 186 (1986).
Brandenburg v. Ohio, 395 U.S. 444 (1969).
Branzburg v. Hayes, 408 U.S. 665 (1972).
Buckley v. Valeo, 424 U.S. 1 (1976).
Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980).
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000).
DVD Copy Control Ass’n v. Bunner, 75 P.3d 1 (Cal. 2003).
Dworkin, R. (1977). Taking rights seriously. Cambridge: Harvard University Press.
Dworkin, R. (1996). Freedom’s law: A moral reading of the American Constitution. Cambridge: Harvard University Press.
Eldred v. Ashcroft, 537 U.S. 186 (2003).
Globe Newspapers v. Superior Court, 457 U.S. 596 (1982).
Hernstein, R. J., & Murray, C. (1994). The bell curve: Intelligence and class structure in American life. New York: Free Press.
Himma, K. E. (2009). Philosophy of law, The Internet encyclopedia of philosophy. Accessed May 21, 2009, from http://www.utm.edu/research/iep/l/law-phil.htm#SSH2a.i
Houchins v. KQED, Inc., 438 U.S. 1 (1978).
Irwin, D. R. (2005). Freedom of thought: The first amendment and scientific method. Wisconsin Law Review, 2005, 1479–1533.
Junger v. Daley, 209 F.3d 481 (6th Cir. 2000).
Kass, L. R. (2009). Forbidding science: some beginning reflections. Science and Engineering Ethics (this issue).
Lawrence v. Texas, 539 U.S. 558 (2003).
MacArthur, A. P. (2007). The NSA phone call database: The problematic acquisition and mining of call records in the United States, Canada, the United Kingdom, and Australia. Duke Journal of Comparative and International Law, 17, 441–481.
McDonald, B. P. (2005). Government regulation or other “abridgments” of scientific research: The proper scope of judicial review under the first amendment. Emory Law Journal, 54, 989–1091.
Mostow, P. (1994). Like building on top of Auschwitz: On the symbolic meaning of using data from the Nazi experiments, and on Non-Use as a Form of Memorial. Journal of Law and Religion, 10, 403–431.
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
National Commission on Egg Nutrition v. FTC., 570 F.2d 157 (7th Cir. 1977).
Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
Playboy Entertainment Group, Inc. v. United States, 529 U.S. 803 (2000).
Post, R. C. (1988). The constitutional concept of public discourse: Outrageous opinion, democratic deliberation, and hustler magazine. Harvard Law Review, 103, 603–686.
Post, R. C. (1995). Recuperating first amendment doctrine. Stanford Law Review, 47, 1249–1281.
Post, R. C. (2000). Encryption source code and the first amendment. Berkeley Technology Law Journal, 15, 629–723.
Redish, M. H. (1982). The value of free speech. University of Pennsylvania Law Review, 130, 591–645.
Robertson, J. A. (1977). The scientist’s right to research: A constitutional analysis. Southern California Law Review, 51, 1203–1279.
Scanlon, T. M. (1972). A theory of freedom of expression. Philosophy and Public Affairs, 1(2), 204–226.
Schneider v. Smith, 390 U.S. 17 (1968).
Spence v. Washington, 418 U.S. 405 (1974).
Sullivan, K. M., & Gunther, G. (2007). Constitutional law (16th ed.). New York: Foundation Press.
Texas v. Johnson, 491 U.S. 397 (1989).
United States v. Progressive, Inc., 467 F. Supp. 990 (E.D. Wis. 1979).
United States v. Wenger, 427 F.3d 840 (10th Cir. 2005).
Universal City Studios v. Corley, 273 F. 3d 429 (2d Cir. 2001).
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
Volokh, E. (2005). Crime-facilitating speech. Stanford Law Review, 57, 1095–1222.
Washington v. Glucksberg, 521 U.S. 702 (1997).
Wein, L. M., & Liu, Y. (2005). Analyzing a bioterror attack on the food supply: The case of botulinum toxin in milk. Proceedings of the National Academies of Science, 102(28), 9984–9989.
Weinstein, J. (1999). Hate speech. Boulder: Westview Press, Pornography and the Radical Attack on Free Speech Doctrine.
Weinstein, J. (2004). Speech categorization and the limits of first amendment formalism: Lessons from Nike v. Kasky. Case Western Reserve Law Review, 54, 1091–1142.
Weinstein, J. (2007). Institutional review boards and the constitution. Northwestern Law Review, 101, 493–561.
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
Zablocki v. Redhail, 434 U.S. 374 (1978).
Zemel v. Rusk, 381 U.S. 1 (1965).
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Weinstein, J. Democracy, Individual Rights and the Regulation of Science. Sci Eng Ethics 15, 407–429 (2009). https://doi.org/10.1007/s11948-009-9145-2
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DOI: https://doi.org/10.1007/s11948-009-9145-2