SCIENCE, TECHNOLOGY, AND THE CONSTITUTION

The Constitution's only reference to science occurs in Article I, section 8, which grants, among other congresional powers, the authority to "promote Science and useful Arts" by establishing nationwide protection of patents and copyrights. Despite the document's otherwise silence on the subject, a constitutional law of science may be evolving—and inevitable and, to some extent, auspicious developement in our technological age. Indeed, cases involving some aspect of the constitutional status of science form a burgeoning part of constitutional law, principally, but not exclusively, under the first amendment.

Perhaps the most obvious question about the status of science is whether scientific speech falls within the First Amendment's protection of freedom of speech. Some critics, notably Robert Bork, have challenged the idea that scientific speech is fully protected, and no court has reached the question explicitly. The most likely answer, should a case arise, is that scientific communication is entitled to the same degree of First Amendment protection as other speech. A number of decided cases, including the Supreme Court's opinion in griswold v. connecticut (1965), contain obiter dicta referring to scientific speech as though it were in no way different from other First Amendment activity. If one sees the First Amendment's protection of speech as a means of enabling self-actualization or of discovering truth through the free interplay of ideas, the case for including scientific speech is straightforward. But even if one considers political debate as the core of the constitutional guarantee, in our society the use and regulation of technology form a central part of governmental activity. Debate concerning the scope and efficacy of these efforts will necessarily include a scientific component.

Scientific researchers insist that absolute freedom to communicate their ideas is neccessary to the scientific enterprise. Constitutional protection, however, is rarely absolute, and to say that scientific speech is protected is only a part of the answer. Like other speech, scientific speech may be subjected to regulation in certain circumstances. In particular, the federal government has increasingly sough to regulate the flow of scientific information in the name of national security.

National security regulations on scientific speech fall into two broad categories. First, there are restrictions through which the government seeks ownership of the information in question. For example, under the "'born classified" provisions of the atomic energy act, inventions or discoveries that are "useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon" are not patentable and, in many cases, are from their inception property of the federal government. The constitutionality of this restriction apparently has never been challenged, but given the plenary nature of congressional authority over the patent system, it is difficult to imagine that it would be struck down.

Second, there are restrictions through which the government, without regard to ownership, seeks to regulate the transmittal of the information in question. For example, a number of federal regulations seek to treat certain scientific information, especially information on "military critical technologies," as a commodity, subject to export restrictions. Another example is the consistent effort by the National Security Agency to discourage American researchers from publicly revealing (even in the United States) the fruits of any work with important implications for the field of encryption.

What the government must show to sustain its regulation is unclear because the constitutionality of national security restrictions on the communication of scientific information has been rarely tested. An exception is United States v. The Progressive (1979), in which the federal government sought to enjoin the publication of a magazine article that purportedly revealed how to construct a hydrogen bomb. A federal district court granted the injunction, holding that the publication of the article might do infinite damage to the nation's (and the world's) security, and therefore, the test of near v. minnesota ex. rel. olson (1931) and new york times v. united states (1971) was easily met. Before an appeal could be decided, however, the article was published elsewhere and the trial court's judgment was vacated as moot.

Critics mocked the court's reasoning, arguing that it would enable government to enjoin publication of many scientific ideas; all the court required was a showing of a minuscule possibility of infinite harm. As has subsequently become clear, moreover, the article involved in The Progressive, although setting out some of the theory behind the hydrogen bomb, did not actually reveal the critical model necessary to make the bomb explode. The trial judge undertook no close scrutiny of the article, however, resting his decision on the government's affidavits. In so doing, the judge showed far greater deference to the government's assertion of harm to the nation's national security than have courts confronted with similar claims when the speech in question has lacked a scientific component. The one lesson of The Progressive is that courts may view an argument that scientific speech will harm the nation's security with considerably greater sympathy than they have displayed for the same argument concerning other kinds of speech.

Not all attempted restrictions on scientific speech rest on a national security foundation. Perhaps the most controversial attempt has been the effort by some believers in the Genesis account of creation to prohibit or limit the teaching of the theory of evolution in public school classrooms. Scopes v. State (1927), in which Clarence Darrow battled eloquently, but in vain to prevent the conviction of a teacher for violating a ban on teaching the Darwinian theory of evolution in the public schools, is a part of our popular legal mythology, but the Scopes case was the zenith of judicial deference to creationism. In recent decades, the federal courts have been unwavering in their refusal to allow restrictions on the teaching of evolution in public schools. Thus in epperson v. arkansas (1968), the Supreme Court struck down a state prohibition on teaching evolution. In Daniel v. Waters (1975), a federal appeals court overturned a state law requiring that students be told that evolution is a theory, not a fact. In Edwards v. Aguillard (1987) the Supreme Court held unconstitutional "balanced treatment" legislation that mandated the teaching of creationism alongside the theory of evolution.

A chorus of critics has suggested that by striking down balanced-treatment statutes the courts are in effect granting science itself a special constitutional status. Justice antonin scalia, in his dissent in Edwards, did not embrace this broad-scale criticism, but he did raise a related objection to the Court's decision. He argued that the Louisiana legislature had determined, on the advice of people they considered scientists, that creation science was not just religious dogma but a scientific theory founded on evidence and subjected to testing. As yet, the Court had before it no interpretation by the Louisiana Supreme Court of the law's meaning and no evidence of its actual application in the schools. Thus, he argued, it was premature for the Court to conclude that the legislature's purpose was merely to promote a religious belief.

The more far-reaching criticism, that the courts are giving science a special status under the Constitution, is met head on by some critics who assert that the courts should do precisely that. Proponents of this view typically point to the views of the Founders, many of whom accepted a contemporaneous, philosophical, commonplace holding of scientific progress to be an essential component of human happiness. A few scholars, perhaps stretching an otherwise interesting historical point, have even tried to demonstrate that the Founders intended to write this doctrine into the Constitution itself.

This is an argumentative turn that matters because the more important problem for scientific researchers may not be potential restrictions on communication, but the possibility of limits on experiments. In this situation, the difficulty is not religious belief but public fear and skepticism. The use of bona fide health and safety arguments to justify the regulation of the use of technology is nothing new and raises no significant constitutional questions. Scientific experiment, however, lies somewhere between pure scientific speech and pure application of technology, and recent efforts at its regulation have led to constitutional controversy.

A particular focus of debate is the effort in recent years to restrict experimentation on recombinant deoxyribonucleic acid (rDNA) techniques and other aspects of the "new biology" because of popular concern over the results and the implications. Several years ago, for example, Cambridge, Massachusetts, the home of two of the nation's leading research universities, was urged to adopt an ordinance banning rDNA experiments. Cambridge finally settled for requiring compliance with certain federal guidelines, but for a time, the matter seemed to hang in the balance. Experts argued that the techniques were relatively safe, but many members of the public simply disbelieved the experts' claims.

In response to the wave of public fear in the 1970s and 1980s, several commentators urged a form of First Amendment protection for scientific experiment. The difficulty these theorists have faced is overcoming the distinction between speech and conduct that has long governed First Amendment jurisprudence; scientific experiment would seem to fall plainly on the conduct side of the divide. But theorists have challenged the application of this neat dichotomy to the distinction between scientific speech and scientific experiment. Some supporters of protection for experiment have claimed to find support in the original understanding of free speech, others have contended that experiment is as important as communication for self-actualization, and still others have argued that experimentation is protected because it is a prerequisite to the protected activity of scientific speech. Critics have responded that the First Amendment argument for protection of experiments is clever, but far-fetched. As the critics note, the Supreme court rejected an analogous claim, in Houchins v. KQED (1978), that the activity of news gathering is protected as a prerequisite to the protected activity of news reporting. No court has yet accepted the claim of a constitutional right to experiment; on the contrary, courts have occasionally granted injunctions against controversial scientific experiments.

Although freedom of scientific speech has been a central part of the scholarly debate on the constitutional status of science, most Americans are more directly concerned with the technologies that scientific research makes possible, not science itself. This concern has generated arguments for two quite different rights: the right to use technology without governmental interference and the right to be free of governmental use of technology. As a practical matter, courts have dealt with claims of both these kinds in much the same way as they have treated the arguments of scientific creationists: they have tried to follow the experts.

The claim of a right to use technology has been most prominent in debates over medical treatment. For example, in Andrews v. Ballard (1980), a federal district court upheld a claim to a constitutional right to choose acupuncture therapy. To reach this result, the court was forced to reconceptualize the Supreme Court's decisions in Griswold v. Connecticut and roe v. wade (1973) as involving not the right of privacysimpliciter, but rather the right to make a private choice whether to use medically approved birth control technologies. The requirement of medical approval enabled the court to distinguish acupuncture, which a considerable number of researchers believe to hold genuine benefits, from such exotic drugs as laetrile, which the medical profession generally rejects as a cancer treatment. (The courts have rejected arguments for a constitutional right to use laetrile.)

The idea of a constitutional right to be free from governmental use of technology was rejected at the turn of the century in jacobson v. massachusetts (1904). In this case, the Supreme Court rejected a constitutional challenge to a mandatory vaccination against smallpox. The Court cited the right of the state to protect itself, and faced with the argument that vaccination was unnecessary or dangerous, or both, responded that it was the responsibility of the legislature, not the Court, to choose among competing medical theories. More recently, courts have employed similarly deferential reasoning to sustain such regulations as forced medical care for children whose parents raise religious objections and mandatory AIDS testing of some federal employees.

Perhaps the most controversial among recent governmental uses of technology, however, is mandatory drug testing of employees. In national treasury employees union v. von raab (1989) and skinner v. railway labor executives association, (1989) the Supreme Court rejected fourth amendment privacy challenges to two very different programs of drug testing. In Skinner, the Justices voted 7–2 to sustain federal regulations allowing railroads to require breath and urine tests to determine whether employees committing safety infractions had used alcohol or drugs. In National Treasury Employees Union, the Court voted 5–4 to uphold a program mandating urine tests for employees seeking transfer or promotion to positions in drug-interdiction programs.

Both cases were decided on technical Fourth Amendment arguments not relevant to this discussion. In each case, however, the majority found it necessary to make reference to the accuracy of the tests. Thus in Skinner, the Court stated that the breath and urine tests, "if properly conducted, identify the presence of alcohol and drugs in the biological samples tested with great accuracy." In National Treasury Employees Union, the Court took care to note that the test "is highly accurate, assuming proper storage, handling, and measurement techniques." In neither opinion did the Justices explicitly hold that the accuracy of the tests was a factor in their decision. Nevertheless, the fact that they mentioned the point at all and with such confidence raises the possibility that they might have reached a different result had serious expert challenges to the tests been available.

None of this suggests that expert agreement on a sufficiently accurate result is itself a decisive argument in favor of constitutionality. But these and other opinions plainly raise the possibility that the Supreme Court will defer to scientific expertise in answering constitutional questions. This judicial deference, if it exists, might reflect a recognition by the courts of their limited capacity to decide scientific questions. The difficulties that courts and legislatures alike have with science have led a number of commentators, notably Arthur Kantrowitz, to suggest the creation of a special science Court to decide the scientific components of complex policy and legal questions. Critics of the Science Court proposal call it undemocratic. Defenders argue that democracy would be better served if courts and other decisionmakers made no pretense of scientific expertise.

Steven L. Carter
(1992)