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Experimentation and the Marketplace Theory of the First Amendment

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Experimentation and the Marketplace Theory of the First Amendment EXPERIMENTATION AND THE MARKETPLACE THEORY OF THE FIRST AMENDMENT GARY L. FRANCIONEt TABLE OF CONTENTS INTRODUCTION .................................... 418 I. EXPERIMENTATION AS EXPRESSIVE CONTENT ...... 426 A. The General View .......................... 427 B. Experimentation as Protected Expression ....... 430 1. Experimentation as Communicative Conduct 431 2. Experimentation as Communication ........ 445 a. Information-GeneratingEvents as Com- munication ........................ 445 b. Use of "Scientific Method" as Communi- cation ............................ 448 c. The Public Nature of Experimentation as Communication .................. 448 d. The Awareness of Acting as Involving Communication .................... 449 e. Experimentation Incidental to "Basic Science" as Protected Expression ...... 450 C. Summary ................................. 458 II. EXPERIMENTATION AS A NONCOMMUNICATIVE "PRE- CONDITION" TO THE DISSEMINATION OF SCIENTIFIC EXPRESSION ........................................ 459 "Copyright © 1987 by Gary L. Francione. All rights reserved. Associate Profes- sof Law, University of Pennsylvania. My colleagues Steve Burbank, Michael Fitts, Susan Sturm, and Clyde Summers read and commented on earlier drafts of the manu- script. My colleagues C. Edwin Baker, Frank Goodman, Seth Kreimer, and Michael Madow provided generous amounts of time and valuable advice throughout the entire research and writing process. Regina Austin and Alan Watson not only commented on the manuscript, but also expressed continuous support and encouragement for the pro- ject. Dr. Robert Kohler of the Department of the History and Sociology of Science at the University of Pennsylvania was extremely helpful in guiding me to appropriate source materials. Our research librarians provided expert assistance in helping me to obtain materials and advice. Lorraine Vance and Deborah Neary exerted extraordinary efforts to type promptly the various versions of the manuscript. Special thanks to Anna Charlton, class of 1989, for her assistance, guidance, and most of all, her patience. (417) 418 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 136:417 A. General Preconditions, Information-Gathering, and Experimentation as the Process of Science: Three Approaches and Three Problems ........ 460 1. General Precondition Argument ........... 464 2. News-gathering ........................ 466 3. Experimentation as Providing the Meaning of Scientific Expression .................... 476 B. The Formulation of a Limiting Principle ...... 482 1. Crude Empiricism ...................... 487 2. Implications of Rejecting Crude Empiricism. 497 a. The Value of Scientific Information ... 499 b. Content Discrimination and the Formu- lation of a Limiting Principle ........ 499 c. Additional Difficulties Inherent in an Appeal to "Normal" Science ......... 507 C. Summ ary ................................. 511 CONCLUSION ...................................... 511 The profession of science is the searchfor truths about the natu- ral world; more precisely, it seeks verifiable generalizations that simplify human comprehension and prediction of natural phenomena. -Lederberg, The Freedoms and the Control of Science* [S]cience, in all its senses, is a social process that both causes and is caused by social organization. To do science is to be a social actor engaged, whether one likes it or not, in political activity. -R. Levins & R Lewontin, The DialecticalBiologist** INTRODUCTION In recent years, a number of scholars have argued that the first amendment to the United States Constitution' provides some degree of * Lederberg, The Freedoms and the Control of Science: Notes from the Ivory Tower, 45 S. CAL. L. REV. 596, 599 (1972). ** R. LEVINS & R. LEWONTIN, THE DIALECTICAL BIOLOGIST 4 (1985) (empha- sis omitted). ' U.S. CONST. amend. I. 1987] EXPERIMENTATION AND THE FIRST AMENDMENT protection to "scientific research" or "scientific inquiry." 2 For example, in testimony before a congressional committee examining the constitu- tionality of regulating recombinant DNA research, Professor Thomas 2 See, e.g., Science Policy Implications of DNA Recombinant Molecule Research: Hearings Before the Subcomm. on Science, Research and Technology of the House Comm. on Science and Technology, 95th Cong., 1st Sess. 875 (1977) [hereinafter Emerson testimony] (testimony and statement of Thomas Emerson, Lines Professor of Law Emeritus, Yale Law School); I. CARMEN, CLONING AND THE CONSTITUTION (1985); Berger, Government Regulation of the Pursuit of Knowledge: The Recombi- nant DNA Controversy, 3 VT. L. REV. 83 (1978); Delgado, Bradley, Burkenroad, Chavez, Doering, Lardiere, Reeves, Smith & Windhausen, Can Science Be Inoppor- tune? Constitutional Validity of Governmental Restrictions on Race-IQ Research, 31 UCLA L. REV. 128 (1983) [hereinafter Delgado, Race-IQ Research]; Delgado & Mil- len, God, Galileo, and Government: Toward Constitutional Protectionfor Scientific Inquiry, 53 WASH. L. REV. 349 (1978); Favre & McKinnon, The New Prometheus: Will Scientific Inquiry Be Bound by the Chains of Government Regulation?, 19 DuQ. L. REV. 651 (1981); Ferguson, Scientific and Technological Expression:A Problem in First Amendment Theory, 16 HARV. C.R.-C.L. L. REV. 519 (1981) [hereinafter Fer- guson, Scientific Expression]; Ferguson, Scientific Inquiry and the First Amendment, 64 CORNELL L. REV. 639 (1979) [hereinafter Ferguson, Scientific Inquiry]; Goldberg, The Reluctant Embrace: Law and Science in America, 75 GEo. L.J. 1341 (1987) [hereinafter Goldberg, Reluctant Embrace]; Goldberg, The Constitutional Status of American Science, 1979 U. ILL. L.F. I [hereinafter Goldberg, Constitutional Status]; O'Neil, Scientific Research and the First Amendment: An Academic Privilege, 16 U.C. DAVIS L. REV. 837 (1983); Robertson, The Law of Institutional Review Boards, 26 UCLA L. REV. 484 (1979); Robertson, The Scientist's Right to Research: A Consti- tutional Analysis, 51 S. CAL. L. REV. 1203 (1977) [hereinafter Robertson, Scientist's Right]; Comment, Considerationsin the Regulation of Biological Research, 126 U. PA. L. REV. 1420 (1978); Note, First Amendment Protectionfor Biomedical Research, 19 ARIZ. L. REV. 893 (1977). In a recent analysis concerning experiments involving nonhuman animals, Profes- sor Dresser acknowledges that "the movement to strengthen legal controls over research on animals has grown in size and intensity." Dresser, Research and Animals: Values, Politics, and Regulatory Reform, 58 S. CAL. L. REV. 1147, 1147 (1986). Although Professor Dresser advocates reform of the current regulatory structure, she observes that "governmental restriction of scientific research has long been suspect in our na- tion," id., and that one of the "frequently voiced objections to the review of animal research [is that] . federal oversight violates the scientist's first amendment right of free inquiry," id. at 1191. Professor Dresser accepts that "there are convincing legal reasons for postulating the existence of . .a [first amendment] right" to engage in animal experimentation and that only "compelling" state interests will suffice to justify the regulation of animal experimentation. Id. Congress has amended the Animal Wel- fare Act, 7 U.S.C. §§ 2131-55 (1982 & Supp. Ill 1985), which concerns the use of nonhuman animals in experiments. See The Food Security Act of 1985, Pub. L. No. 99-198, 99 Stat. 1354, 1645. Concern for free inquiry dominated congressional hear- ings on the amendments and the resulting legislation carefully avoided any meaningful restrictions on animal experimentation. The sponsor of the amendments in the House of Representatives noted that the amendments "would not interfere with the freedom of the decision of a scientist to conduct an experiment but instead [would take] precautions to ensure that humane handling of the animals occurs whenever possible." Improved Standardsfor Laboratory Animals Act; and Enforcement of the Animal Welfare Act by the Animal and Plant Health Inspection Service: Hearing on H.R. 5725 Before the Subcomm. on Department Operations, Research, and Foreign Agriculture of the House Comm. on Agriculture, 98th Cong., 2d Sess. 2 (1984) (statement of Rep. George Brown). 420 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 136:417 Emerson stated, "[t]here can be no doubt that the First Amendment provides extensive protection to freedom of scientific research." 3 Profes- sor Emerson discussed the various components of DNA research and observed that the "development [and] exposition of theoretical ideas about DNA and other genetic materials and processes is clearly expres- sion[,] ...[but] [tihe more difficult question is the classification of ex- perimentation."' Professor Emerson observed that "[e]xperimentation is a vital feature in the development of new information, ideas, and theo- ries.' He analogized experimentation to "marching in a demonstra- tion, the publication of a newspaper, and the organization of a political party,"' but added that he would classify particularly hazardous exper- imentation as "action" not subject to first amendment protection.7 Pro- fessor Emerson has noted elsewhere that a "hard" first amendment problem "now looming on the horizon . .[is] whether certain kinds ' of . .research may be prohibited or regulated." Although there are various approaches to the issue, scholarly com- ment thus far has generally endorsed some version of Professor Emer- son's approach. Indeed, one of the leading casebooks in the area of law and science reports that experimentation is accorded
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