Science as Speech

Abstract

In April 2015, researchers in China reported the successful genetic editing of human embryos using a new technology that promised to make gene editing easier and more effective than ever before. In the United States, the announcement drew immediate calls to regulate or prohibit outright any use of this technology to alter human embryos, even for purely research purposes. The fervent response to the Chinese announcement was, in one respect, unexceptional. Proposals to regulate or prohibit scientific research following a new breakthrough occur with substantial frequency. Innovations in cloning technology and embryonic stem cell research have prompted similar outcries, and even resulted in legislative action. Meanwhile, the U.S. government instituted a funding “pause” on certain infectious-disease research while it contemplated whether researchers should even be permitted to complete such work.

Regulations such as these often seek to prevent researchers from discovering information and, consequently, can limit discourse on important matters of public concern. This Article argues that such de facto censorship implicates the First Amendment, and that constitutional scrutiny is necessary whenever the government regulates scientific inquiry in an effort to suppress knowledge production. This Article establishes a framework for assessing whether and when legislatures cross the constitutional line by regulating scientific experimentation. Applying this framework in a variety of contexts, from gene editing and human cloning to infectious-disease research, this Article also identifies both constitutionally sound and constitutionally suspect purposes for which government actors have regulated scientific research.

Keywords: Free Speech, First Amendment, China, human embryos, infectious diseases, scientific research, government funding, de facto censorship, regulation

JEL Classification: K1, K19, K00, K23