The Limits of Government Regulation of Science
Georgetown University Law Center; Georgetown University - School of Nursing & Health Studies
Lawrence O. Gostin
Georgetown University - Law Center - O'Neill Institute for National and Global Health Law
February 28, 2012
Science, pp. 1047-1049, March 2012
Georgetown Public Law Research Paper No. 12-020
The recent controversy over the National Science Advisory Board for Biosecurity’s (NSABB) request that Science and Nature redact key parts of two papers on transmissible avian (H5N1) influenza reveal a troubled relationship between science and security. While NSABB’s request does not violate the First Amendment, efforts to censor the scientific press by force of law would usually be an unconstitutional prior restraint of the press absent a compelling state interest. The constitutional validity of conditions on grant funding to require pre-publication review of unclassified research is unclear but also arguably unconstitutional.
The clearest case where government may restrict publication is when research has been properly classified as a security risk. It is less clear whether government may suppress the publication of “controlled unclassified information” (CUI). The key inquiry is whether the information poses a genuine security risk and the restraint is the least restrictive alternative.
At the same time, the federal government has fairly broad latitude to protect sensitive data in its sole possession from disclosure under FOIA.
We propose that future decisions on dual-use research should be taken through a fair and transparent institutional review process, likely best modeled on the institutional biosafety committees required for recombinant DNA research.
Number of Pages in PDF File: 4
Keywords: H5H1, Influenza, biosecurity, scientific freedom
JEL Classification: I18, K30, K39
Date posted: March 3, 2012