...Safe, 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.

I. WHAT TYPES OF SCIENTIFIC RESEARCH MIGHT SUFFER RESTRICTION?

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 includes justice, domestic tranquility, national defense, and general well-being. These goals are essential to democratic self-preservation and implicate human self-preservation as well. Therefore, the fact that we place some limits on scientific knowledge, or at least scientific methods of obtaining such knowledge, should not be controversial when more essential interests appear to be threatened. This Part will examine the major areas of scientific research that have been subject to regulatory limits or may face limitation in the near future. I have divided the types of research into two sections: research primarily objectionable on safety grounds and research primarily objectionable on moral grounds. Although many areas of controversial research face both safety and moral resistance, treating the safety and moral objections separately is useful in identifying the interests that the government might offer to justify scientific restriction. Those government interests will be analyzed individually in Part III.

It is worth noting that there are at least two alternative divisions one might choose instead of the safety/moral categorization. First, controversial research could be classified according to whether it involves actual or potential harm. Human experimentation, at least in its extreme form, is objectionable because of the actual harm it causes human subjects. With unrestricted biological weapons research, however, we are worried about potential for harm in the future. Second, research might be restricted because of the methods it uses versus the knowledge it seeks. For example, using mice to study the likely effects of high-energy radiation on the human body may be acceptable, while using children would not be. Objections to human cloning, on the other hand, are less grounded in the particular method of cloning than in the fear of what might happen with cloning knowledge. These alternative categorizations are not as useful as the safety/morality division, but may be helpful in formulating a narrowly tailored restriction for certain types of research.

The issue of restrictions on scientific publishing more directly implicates the First Amendment and will be discussed in Part I.C. The government interests that might support a ban on publishing would likely be the same as those invoked to support a ban on research, so there is no need for a special discussion of that subtopic. Because communication of scientific results is more squarely protected by free speech rights, I will not deal with this issue at any great length. However, there are some unique problems that arise in this context, and they warrant discussion since they cannot be accommodated by existing First Amendment jurisprudence.

A. Research that Is Primarily Objectionable on Safety Grounds

The United States already has a significant body of regulations that restrict what scientists can do. Most, if not all, of these restrictions are based primarily on human safety concerns. Protecting health and safety is the most obvious justification for government regulation, because unlike other possible justifications, such as protecting the environment, promoting the economy, or preventing immorality, safety and well-being are universal concerns. This Subpart will briefly discuss two examples of scientific research that warrant safety-based regulations: experimentation on human subjects and research that facilitates weapons of mass destruction.

1. Experimentation on human subjects

Biological research with human subjects (33) unquestionably provides a great number of benefits, among them effective drugs and safe medical procedures. But due to the nature of medical experimentation, human subjects are vulnerable to exploitation, including physical and mental harm. Federal regulation of human experimentation is codified at 45 C.F.R. [section] 46 and provides specific guidelines. Most importantly, Institutional Review Boards (IRBs) must approve all government-funded research that involves human subjects. (34) The IRBs determine whether proposed research will provide benefits that are reasonable in relation to the risk of harm, (35) ensure that informed consent is obtained, (36) and ensure that additional safeguards are in place for experiments with potentially vulnerable subjects (e.g., children, prisoners, fetuses). (37)

A specific area of human experimentation that has a considerable body of case law is fetal experimentation. Courts have confronted challenges to state laws that prohibit or restrict fetal experimentation, and although some courts have found such restrictions valid, (38) many courts have invalidated them on the grounds that "experimentation" was poorly defined. For example, in Forbes v. Napolitano, (39) the Ninth Circuit affirmed a lower court ruling that an Arizona statute was unconstitutionally vague, because the statute provided no guidance as to where the line between experiment and treatment was to be drawn. (40) Such cases highlight the importance of careful legislative drafting with respect to scientific research restrictions. This issue will be further explored in Part III.

2. Research that facilitates weapons of mass destruction

Perhaps the most obvious form of research that poses health and safety risks is that which involves experimentation with nuclear, chemical, and biological weapons. Although most of this research is not geared toward the production of a weapon, the work nonetheless raises serious safety concerns. The U.S. government has long been concerned with the effects of unregulated weapons research. (41) In 1946, Congress passed the Atomic Energy Act, (42) which prohibited non-government scientists from engaging in certain types of nuclear energy research and instituted licensing for all uses of radioactive materials. Thus, the Act provides a clear example of regulation of scientific research in the name of public safety. Indeed, one commentator has observed that "[a]lthough there is no precedent for use of government security controls to impose prior restraints upon scientific freedom, the Atomic Energy Act is pregnant with a statutory foundation for such action." (43)

The weapons of mass destruction that loom large in the American psyche since 9/11 relate more to biological and chemical agents than to the traditional nuclear weapons envisioned by the Atomic Energy Act. Yet there is no comprehensive law that regulates biological and chemical weapons research. Although government regulation of bioweapons research has certainly been considered, (44) the primary approach has been contractual, limiting foreign personnel from working on sensitive government-funded projects. (45)

Outside of the funding context, restrictions on weapons research have essentially been left to the discretion of scientists, who have been aided by recommendations from colleagues and advisory groups that have considered the issue. Following the bioterrorism scares of late 2001, for example, one pair of scientists warned that "[e]very researcher, whether in academia, in government research facilities, or in industry, needs to be aware of the potential unintended consequences of their own and their colleagues' research." (46)

In 2004, the Department of Health and Human Services (DHHS) announced the creation of the National Science Advisory Board for Biosecurity (NSABB) to address the problem of legitimate scientific research that, if misused, could seriously threaten public health or national security (so called "dual use" research). (47) The role of the NSABB is to advise governmental agencies on policies related to public disclosure and to develop guidelines for the identification and conduct of research that may require security surveillance. (48) The ill-defined scope of the NSABB authority, however, leaves plenty of room for weapons research to proceed with impunity. Thus, regulation of weapons research, impinging on the freedom of scientific inquiry in the name of public safety, remains a distinct possibility for the near future.

B. Research that, Even if Safe, Is Still Objectionable on Moral Grounds

Justifying scientific research restrictions solely on moral grounds does not have a strong pedigree in the United States. Nonetheless, there are several rapidly developing fields of biology that, if left unregulated, would challenge our conventional notions of humanity. For this reason, research restrictions grounded at least in part on morality are likely to become more prominent.

It is important to note that there are two categories of research that might raise moral objections. The first category is research that aims solely to reveal some scientific, cultural, or social fact that is itself morally questionable. An example would be race-IQ research or ethnic migration studies. (49) With both of these examples, uncovering the hidden knowledge may be morally objectionable because it may reinforce racial stereotypes or fuel ethnic entitlement. The second category involves morally objectionable research that is resisted not because of any secret knowledge that it reveals but because of its application. Human cloning is the most obvious example, where the moral red flag is not raised by the discovery of a cloning technique but by the implementation of that technique (i.e., the creation of a cloned embryo).

Although restrictions on the first category of morally objectionable research equally implicate the First Amendment, (50) this Note focuses on the second category, because it is more relevant to the cutting-edge science that is driving the free speech debate. This Subpart will highlight human reproductive cloning, embryonic stem cell research and genetic engineering as examples of research that is resisted on moral grounds.

1. Human reproductive cloning

For a technology that is unproven and still largely theoretical, the debate over reproductive cloning has been voluminous. Although much of the opposition is based on concerns for the health and safety of the cloned child, moral opposition would persist regardless of dramatic improvements in safety. The primary moral objection to human reproductive cloning is that reproductive cloning turns nascent human life into an experimental resource, thereby commodifying and devaluing life itself. (51) Subsumed in this position is the notion that cloning threatens to upset the core belief of human equality, since cloned individuals may face discrimination or exploitation. A related objection is that cloning will degrade the human family. Here, opponents argue that cloning will poison the normal familial structure with offspring who are genetically equivalent to one member of the family, rather than a mixture of two. (52) Exploitation of women is also a commonly invoked objection, since women are needed as egg donors and as vessels for the cloned embryo but have little stake in the well-being of the cloned child once it is born. (53) In its 2002 report, the President's Council on Bioethics raised each of these objections, in addition to safety concerns, and ultimately recommended a complete ban on reproductive cloning. (54)

Despite the recommendation of the Council and despite complete bans on reproductive cloning in more than thirty countries, (55) there is currently no federal law prohibiting human reproductive cloning. Although federal funding for cloning research has been unavailable since 1997, scientists in the United States remain free to undertake cloning research with funds from other sources. However, for practical purposes, many scientists are not free to perform such research because some state laws prohibit it. Although certain states allow non-reproductive cloning (e.g., California), (56) reproductive cloning enjoys no statutory support. The fifteen states that have enacted cloning legislation have either prohibited funding for reproductive cloning or have banned the technology altogether. (57)

At the federal level, disagreement in Congress over the extent of cloning regulation has stalled legislation. Despite the House having twice passed legislation to ban the cloning of human embryos for any purpose, the bills have foundered in the Senate because of strong support for therapeutic cloning. (58)

2. Human embryonic stem cell research

Human embryonic stem cell (hESC) research is believed to hold tremendous potential for the treatment of serious medical disorders, such as diabetes and Parkinson's disease. (59) However, because collection of embryonic stem cells requires the destruction of human embryos, (60) fierce...

NOTE: All illustrations and photos have been removed from this article.



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