A Step Towards Innovation: The Right to Research

Jessy Gonzalez Edited by Eli Sclar

Jessy Gonzalez (he/him) is a second-year chemical engineering major from San Jose, California. He is currently an undergraduate researcher in the O’Malley Lab at UCSB and the Kemat Lab at Northwestern University as part of the chemical engineering and synthetic biology departments and serves as the Senate President Pro-Tempore for UCSB’s Associated Students and the Technology Director for the Isla Vista Tenants Union. Jessy plans on pursuing a J.D./P.h.Djoint program after undergrad and adventure into business law in hopes of one day starting a biotech company for renewable energy.

ABSTRACT

Scientific research is a fundamental pillar of human advancement and has revolutionized democracies across the world—from genetic engineering to space exploration to sustainable driverless cars. However, as scientific and technological advances continue to deviate from current physical limitations, such research has been subjected to numerous regulations that impose substantive restrictions on experimentation, the most recent being the development of “designer babies” (genetically selected or altered embryos) and COVID-19 mRNA vaccinations. Consequently, the constitutional right to conduct scientific research free from inquiry has been called into question. Some argue that the law should substantially limit research that raises ethical dilemmas or that is dual use in nature, while others contend that restrictions

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on specific types of research are futile due to (1) legislative inertia; (2) the law’s imprecision in outlining complex and rapidly evolving scientific models; and (3) the susceptibility of legislators to partisan and parochial interests. Nevertheless, as science becomes more embedded into contemporary society, a scientist’s “right to research” has never been directly addressed by the U.S. Supreme Court, especially the extent to which the First Amendment protects the communication of scientific results. Ergo, these claims of the “right to research” to which there is scant judicial authority should consider how inveterate the research in question is within our democratic institutions and culture. This article will examine these uncharted domains of constitutional law and explore non-traditional, scientist-developed alternatives to utilizing substantive regulations, including codes of conduct, voluntary standards, and universal norms.

I. INTRODUCTION

Public attempts to regulate scientific research have proliferated in the past several years, with the public influencing and intervening in decisions concerning applied research, the utilization of specific subject groups, and the methods to conduct research, as evidenced by the recent and continuing debate over using CRISPR/Cas9–based systems to genetically engineer human embryos. While the amalgamation of society and science may seem sensible, the trend for public control over science threatens to politicize and even confine the liberties of scientific research. The suppression of research based on substantive content has, of course, occurred in other historical and geographical contexts. For instance, Lysenkoism (a political campaign that sought to constrain genetics and science-based agriculture) in the Soviet Union terminated scientific creativity, the freedom to express opposing views, and the social benefits of novel discoveries. In the 1930s, Soviet officials placed Trofim Lysenko, the biologist behind Lysenkoism, in charge of the agricultural

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department, where he eviscerated the Soviet Union’s genetics community. Lysenko imposed policies that forced scientists to reject genetics or else find themselves under the heel of the secret police. Overall, “hundreds if not thousands of others were rounded up and dumped into prisons or psychiatric hospitals. Several got sentenced to death as enemies of the state or, fittingly, starved in their jail cells.”1 While the science may seem wildly unreasonable or illogical for others to impose, Soviet allies, such as China, adopted Lysenko’s policies in the 1950s. During China’s Great Leap Forward (a period where the country shifted from an agrarian economy to a communist society), the influence of Lysenkoists on agrarian policy2 contributed to the Great Famine, where around 30 million3 people starved to death. All in all, Lysenkoism oppressed contrasting scientific perspectives and, arguably, plunged Russian biology back almost half a century.4 In general, most scientists would agree that any government restriction infringes on their right of free scientific inquiry to choose their methods and goals in accordance with scientific validity.5 In 1985, U.S. President Ronald Reagan issued the National Security Decision Document 189, which asserts that “to the maximum extent possible, the products of fundamental research [shall] remain unrestricted.”6 Likewise, under U.S. President George W. Bush’s administration, the White House Office of Science and Technology Policy

1 Sam Kean, The Soviet Era's Deadliest Scientist Is Regaining Popularity in Russia, THE ATLANTIC (2017), https://www.theatlantic.com/science/archive/2017/12/trofimlysenko-soviet-union-russia/548786/. 2 Glenn Kucha & Jennifer Llewellyn, The Great Chinese Famine, ALPHA HISTORY (2020), alphahistory.com/chineserevolution/great-chinese-famine/. 3 Vaclav Smil, China's great famine: 40 years later, 319 PUBMED CENTRAL 1619–1621 (1999), , www.ncbi.nlm.nih.gov/pmc/articles/PMC1127087/. 4 JERRY A. COYNE, FAITH VS. FACT: WHY SCIENCE AND RELIGION ARE INCOMPATIBLE 221 (2016). 5 Carl Cohen, When May Research Be Stopped?, 296 NEW ENG. J. MED. 1203– 1210 (1977); Dewitt Stetten Jr., Freedom of Enquiry, 81 GENETICS 415– 425 (1975). 6 NSDD-189: National Policy on the Transfer of Scientific, Technical and Engineering Information, NATIONAL SECURITY DECISION DIRECTIVES, irp.fas.org/offdocs/nsdd/nsdd-189.htm (last visited Apr. 13, 2022).

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Director, John Marburger, argued that “[w]here the marketplace of ideas is regulated, the quality of thought diminishes, and science suffers.”7 In essence, public and governmental interventions violate a scientist’s right to conduct research and are pernicious to progress. The government nor the voters decide research practices and activities, and the scientific community may even be considered its own autonomous body. But, because of recent growing public interventions, it is essential to ponder whether our legal system recognizes the freedom of scientific inquiry as a right or a privilege? Does the U.S. Constitution protect this freedom? Can the government restrict and heavily regulate research methods? When is it appropriate for the public to intervene? These questions challenge the “handsoff” approach to basic science. Much of the tension surrounding the freedom of scientific inquiry derives from the confusion over the constitutionality of the issue. The following section analyzes several sources of this right.

II. CONSTITUTIONAL STATUS

The potential existence of a right against government intervention in choosing the means to pursue specific research or the choice of a research topic does not assert that such decisions are entirely immune from government regulation. Of course, the right denotes that in the absence of government intervention, one is entirely free to engage in any research activity and that only specific government-imposed regulations would be valid. Without a doubt, many if not all rights are limited when they conflict with other legitimate state ends— generally referring to state interests, objectives, or justifications. Consequently, the right to research must submit to weighty public interests, like how the

7 John Marburger, Remarks to the National Academy of Sciences/Center for Strategic and International Standards Workshop on Publishing in the Life Sciences (January 09, 2003).

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rights of journalists8 and speakers9 must yield when their exercise imposes high costs on others, such as screaming “Fire!” in a crowded theater.10 To determine what degree of harm mustexist before any right may be limited, a test must be applied to indicate the government’s regulatory validity in restricting such freedom. Typically, the individual challenging the state enactment is charged with establishing that the specific law is unjust or has no relation to the public’s goals of health, welfare, safety, or morals that the state may seek. Unfortunately, the downfall of substantive due process since the 1930s has allowed legislative discretion to be immensely broad and leave a substantial burden on the challenger. A court may even “presume the legislature has a rational basis for the law even if no facts in the record support such a conclusion.”11 For instance, in Bowers v. Hardwick12, the Supreme court upheld the constitutionality that homosexual acts of intimacy, even when conducted in private settings, were criminal and therefore lay outside their “right to privacy”13 for reasons primarily fearing that the Court will go down a road of illegitimacy. On the other hand, the standard of validity for state impingement on constitutional rights is much higher. First, instead of the challenger, the government has the burden of conveying the exact need for the law. Second, only those particular needs that are considerable, enthralling, or potent will be upheld. Third, the restriction must be fabricated in a way to limit the constitutional right to the minimum extent necessary. For instance, in Roe v. Wade , 14 the Supreme Court characterized the legislature’s interest in advocating for the potential life of fetuses as captivating but only after the fetuses become viable (which is usually after the first trimester); however, this

8 Branzburg v. Hayes, 408 U.S. 665 (1972). 9 Adderly v. Florida, 385 U.S. 39 (1966). 10 Schenck v. United States, 249 U.S. 47 (1919) 11 Harpaz, Leora, Due Process Review, WESTERN NEW ENGLAND UNIVERSITY SCHOOL OF LAW, www.wneclaw.com/conlaw/dueprocessreview2012.html. 12 Bowers v. Hardwick, 478 U.S. 186 (1986) 13 Id. at 2844. 14 Roe v. Wade, 410 U.S. 113 (1973)

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interest in fetus viability was later rejected in Planned Parenthood v. Casey . 15 In short, a state infringement of a constitutional right institutes strict scrutiny for the legislature’s selection on both the ends and means. Frequently, under a rational relation test, burdens imposed to achieve state ends would not pass strict scrutiny. Thus, the latter test resolves uncertainty in favor of the challenger; the former test in favor of the regulation. Frankly, state regulations would be difficult to enact if the freedom to choose the means and ends of research is constitutionally protected since the state will have to substantially justify the need, which, in many cases, may not be evident. Only where there is a demonstrable necessity could the state impose regulations with any doubts resolved in favor of the science. However, this higher standard of strict scrutiny will come at a cost; research that contravenes valid interests unjustifiably would not be regulated. Although the right to research may be justifiably recognized, owing to the fact that the costs to the breached interests are less significant than the costs to science would result in a “looser standard” of scrutiny to regulating research. While the United States Supreme Court has never directly dealt with the freedom of scientific inquiry, progress in a few areas suggests that the right to research does indeed have constitutional protection.

III. RIGHT OF ASSOCIATION

Support for the right to research should be considered in the constitutionally protected right of association. Under the First Amendment, the Constitution secures the freedom to associate with others who share similar interests.16 In this case, scientific research entails association regarding human participation and collaboration. During specific experiments, the researcher and the human

15 Planned Parenthood v. Casey, 505 U.S. 883 (1992) 16 FindLaw Attorney Writers, First Amendment Freedom of Association, FINDLAW (December 13, 2021), constitution.findlaw.com/amendment1/first-amendment-freedomof-association.html.

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subject associate with one another when the human subject allows the researcher to manipulate, observe, or interview themself for purposes of scientific discovery and investigation. The same could be said for when researchers associate among the scientific community to carry out joint experiments or discuss potential hypotheses cooperatively. Therefore, restrictions imposedon both the means and ends of research could impair the capacity for researchers to gather among themselves or meet with their subjects for scientific purposes, ultimately suggesting that such restrictions violate the right of association. Although not all types of associations are protected under the First Amendment, research does involve significant speech interests. As evidenced in Moore v. City of East Cleveland , 17 Justice Stewart postulated that the Constitution guarantees certain rights of association under the first amendment "because it is often indispensable to effectuation of explicit First Amendment guarantees. . .[and] has been limited to the constitutional need that created it."18 Undoubtedly, these speech interests produce information and ideas, typically through formal research papers, essential to the scientific community’s progression. However, the argument for research as a legitimate association may hardly support the dispute that research is a constitutional right because its guarantee as some classification of an association depends on the recognition that the means of the research is particularly a speech or expressive activity. In accordance with JusticeStewart, without that kind of recognition, it would not have independent standing, but with that recognition, it would be unnecessary to seek protections as a right of association. Nevertheless, that is not to say that the argument for research as an association should not be utilized; there may be instances where acknowledging the various association aspects of research will surely reinforce the free speech claims that may result when government restrictions and regulations infringe on the willing researcher-subject

17 Moore v. City of East Cleveland, 431 U.S. 494 (1977) 18 Id.

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relationship or populations of scientists. For instance,prohibiting conferences so scientists may meet to deliberate and plan future investigations and experiments would be subject independently to transgress on association grounds, even though it may very well violate the right to research. All in all, if there is any doubt about the extent or existence of the right to research, the right of association argument will be vital to the conversation.

IV. RIGHT TO FREE SPEECH

Furthermore, the right to research may derive from the First Amendment concerning “that there be full opportunity for expression in all its varied forms to convey a desired message.”19 The full opportunity for expression serves multiple ends, including societal and individual—society may enjoy the information necessary to make decisions surrounding politics, and individuals may simply enjoy personal expression and perhaps some fulfillment. In Roth v. United States , 20 the Supreme Court asserts that “all ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guarantees.”21 Therefore, to ensure that the state may meet these goals, they shall not contrast the worth of ideas. With that being said, scientific ideas and information are evidently within the guarantee of the First Amendment, similar to the protection of political speech. Science provides relevant knowledge to a wide range of social and individual decisions, whether that may be in government policies, in deciphering which product to buy, or how we decide to view nature. Indeed, mankind cannot progress in the modern world without easy access to scientific information.

19 Young v. American Mini Theaters, Inc., 427 U.S. 50, 76 (1976) 20 Roth v. United States, 354 U.S. 476 (1957) 21 Roth v. United States, 354 U.S. 476, 484 (1957).

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If the goal of free speech is to ensure the free flow of information for private and public decision-making, then all the features—developing, collecting, distributing, and receiving—of information must be secured. The right to free speech would undoubtedly protect research, specifically the process of collecting information, for two reasons. First, research collection involves traditionally protected activities, such as oration, publishing, and writing. So investigative interviews in the social, psychological sciences, and similar fields that use willing interviewees would be protected since both participants, the interviewer and interviewee would be exercising their First Amendment right to talk with one another. Secondly, a scientist’s right to publish would be ordinarily guaranteed under the First Amendment rights to publish. Furthermore, the Supreme Court has upheld free inquiry historically. In Sweezy v. New Hampshire,22 the Court addressed the issue of free inquiry in a broader context of academic freedom, stating that "teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise,our civilization will stagnate and die." Justice Frankfurter goes further to concur, “For society's good—if understanding be an essential need of society—inquiries into these problems, speculations about them, stimulations in others of reflections upon them, must be left as unfettered as possible.” Obviously, since research produces information crucial to societal and individual purposes, scientists shall have the right to research free from inquiry.

V. ISSUES WITH REGULATING SCIENCE

The law is indeed one of the most powerful tools to establish a tangible change in society and guide human behavior. As a result, when individuals deliberate the need to regulate the means and ends of research, they are almost certainly

22 Sweezy v. New Hampshire, 354 U.S. 234 (1957)

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pointing towards the law, whether it may be in the form of legislation or policy. However, the law has significant limitations in its capabilities, especially when it comes to regulating research. The following section will outline a few of these limitations.

VI. UNINTENDED LEGISLATIVE INERTIA

When a law passes and is publicly publicized, it is challenging to revise the law even when it has become evidently clear that the law is obsolete. The interaction between political and institutional powers produces inertial pressures thatrender laws stagnate, serving neglected purposes and obsolescent policies. In 1986, the United States Office of Technology Assessment (OTA) addressed this issue concerning the intellectual property system and asserted that “ once a relatively slow and ponderous process, technological change is now outpacing the legal structure that governs the system, and is creating pressures on Congress to adjust the law to accommodate these changes.”23 With fascinating discoveries every day and rapidly evolving scientific fields, this raises significant issues with regulations since such laws will have trouble keeping up with these advancements. The process of developing legislation coupled with the judicial case-law system is notoriously slow. Despite the plethora of issues out there, Congress, along with similar legislatures, may only address a small amount of them during general sessions; not to mention, during litigation, a single case may take months to years before receiving a judicial decision, further increasing the probability that the judicial opinion could perhaps be obsolete at its issuance. For instance, in 1958, New York Congressman James Delaney sponsored an amendment to the Food, Drugs, and Cosmetic Act, colloquially known as the Delaney Clause. The clause prohibited any food additive that was “found to

23 Intellectual Property Rights in an Age of Electronics and Information, U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, books.google.com/books?id=utHf_v2yGSsC&ots=jRAmdxpT7e&lr&pg=PA19#v=onep age&q&f=false (last visited Apr. 22, 2022).

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induce cancer in man, or, after tests, found to induce cancer in animals.” When the clause was enacted, society was unaware of all the different chemicals that could cause cancer, and, at the time, carcinogenic additives were viewed as uncommon in human diets. However, emerging scientific knowledge proved that at least half of all known chemicals had the potential to cause cancer in animal tests at high doses and that almost every food additive contained traces of carcinogens. As a result, the Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA) attempted to revise the Delaney Clause, suggesting exemptions to additives with insignificant cancer risks, but the courts constantly rejected their actions. The courts deemed that only Congress may make such changes to the outdated views on carcinogenic additives in the Delaney Clause.24 In the end, it took until 1996—38 years after the enactment—for Congress to finally update the statute and address these outdated policies concerning science.

VII. UNPREDICTABILITY

Scientific research constantly proceeds in unanticipated directions; numerous mistakes and accidents have led to novel and famous discoveries, such as the accidental discoveries of Penicillin25 and microwaves.26 Molecular biologist Robert Weinberg of the Massachusetts Institute of Technology, after listing numerous examples of “serendipitous discoveries” that have advanced cancer comprehension, noted that “[n]o one could have predicted how these

24 Richard A. Merrill, FDA's Implementation of the Delaney Clause: Repudiation of Congressional Choice or Reasoned Adaptation to Scientific Progress, 5 YALE J. ON REG 1 (1988), heinonline.org/HOL/P?h=hein.journals/yjor5&i=7. 25 American Chemical Society International Historic Chemical Landmarks, Discovery and Development of Penicillin, AMERICAN CHEMICAL SOCIETY (November 19, 1999), www.acs.org/content/acs/en/education/whatischemistry/landmarks/flemingpenicillin.ht ml. 26 Matt Blitz, How the Microwave Was Invented by Accident, POPULAR MECHANICS (February, 24, 2016), www.popularmechanics.com/technology/gadgets/a19567/howthe-microwave-was-invented-by-accident/.

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discoveries would arise and play themselves out.”27 Therefore, it is implausible for anyone (a scientist or a lawmaker) to have the necessary forethought to dictate what may result from a research project, including if an experiment may or may not go in the direction of unsuitable risks. Sure, if we restrict certain fields of scientific inquiry, we could avoid any potential unethical or pernicious advances; however, these blockades willalso impede novel discoveries that may behoove mankind.

VIII. PAROCHIAL INTERESTS28

External pressures and influences dictate the strength of the legislative process, holding it accountable to the public. Yet any issue dealing with ethics or science policy is highly probable to become an ostensibly non-political matter, often generating partisan, broad, or unpredictable results. For instance, in 2002, numerous members of Congress made an effort to hold scientific proposed legislation hostage to ban reproductive cloning, which is almost universally supported internationally,29 unless a more controversial prohibition on therapeutic cloning is also enacted simultaneously. Additionally, the FDA’s extensive delays in approving over-the-counter sales of the “morning-after” birth-control pill are arguably based on political and ideological reasons. These are perhaps the very reasons why courts have been extremely skeptical of legislators relying on moral and ethical concerns as a legitimate reason for restricting the rights of others.30

27 Robert A. Weinberg, You Can't Get There from Here: The Tortuous Road to Basic Research, 69 ACADEMIC MEDICINE 441– 442 (1994), oce.ovid.com/article/00001888199406000-00002/HTML. 28 Parochial interests are those that benefit a specific group who shares the same interests but can never describe the interests of an individual. 29 Susan M. Wolf, Ban Cloning? Why NBAC Is Wrong, 27 THE HASTINGS CENTER REPORT 5 (1997), https://www.jstor.org/stable/3527794?seq=1. 30 Dana Remus Irwin, Freedom of Thought: The First Amendment and the Scientific Method, 2005 Wis. L. REV. 1479 (2005), https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/wlr2005&i d=1493&men_tab=srchresults

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With any line of research, the potential benefits are highly unpredictable, far into the future, and require exceedingly complex technical knowledge; thus, it is doubtful for there to be much of a constituency among the general public for supporting specific research fields with the possible exception of research that concerns promising health benefits. On the other hand, it is relatively easy for any politician to demagogue controversial research such as “designer babies,” as illustrated by Senator Proxmire’s “Golden Fleece” award, where he singled out dubious-sounding federal research efforts for public ridicule that in many situations actually turned out to generate highly important and valuable information.31 As even Robert Sinsheimer, an outspoken advocate of heavily regulating research, asserts, “Our experience with constraint upon science has hardly been encouraging. From the Inquisition to Lysenko such constraint has been the work of bigots and charlatans.”32 No doubt, it cannot be denied that democratic oversight is important, but the highly partisan, short-sighted, and often superficial approach to issues, especially issues concerning the sciences, commonly demonstrated by Congressional members, suggest that legislatures are substandard locations for developing intricate and carefully delineated regulationson research.

IX. ALTERNATIVES

Although legal instruments to regulate scientific research are prone to be ineffective and counterproductive, this does not mean that science should never be regulated. Instead, these attempts to legally regulate research should be enacted only in the most extreme cases that contain unavoidable and pernicious risks.

31 Alan I. Leshner, Don’t Let Ideology Trump Science, SCIENCE (November 28, 2003), https://www.science.org/doi/full/10.1126/science.302.5650.1479. 32 David A. Bantz, Philosophy of Science, 51 THE UNIVERSITY OF CHICAGO PRESS 3 (1984), http://www.jstor.org/stable/187502.

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First, however, it is essential to distinguish two critical motivations for prohibiting the sciences. The first being research that is “dual-use” in nature, having both beneficial and malevolent applications. Although this research is not morally objectionable, it potentially can be deliberately or accidentally utilized to cause harm to society. For instance, COVID-19 vaccine research is crucial to better comprehend SARS-CoV-2 (the virus that causes the COVID19 disease) to prevent further outbreaks, but such research may also be used to instigate more lethal bioterrorism attacks. The second motivation comes when members of the public feel that the research and its potential applications are morally objectionable. Unlike dual-use research, the benefits cannot be separated from the unsavory aspects of the research as they overlap. Some examples may include research that involves the production of genetically modified embryos (designer babies), the formation of human-animal chimeras, or research that investigates the relationship between intelligence and race. Generally, there is little disagreement in dual-use research that the beneficial applications are desirable, and the harmful ones are not; the controversy is weighing the two. However, for research considered morally objectionable or unethical, there may be significant disagreements since the distinctions between what is moral and what is not areabsolute.

X. MANAGING UNDESIRABLE APPLICATIONS

To address dual-use research, one obvious approach is to control or direct the knowledge of unwanted applications while allowing the beneficial activities to continue. In other words, society may seek to regulate scientific knowledge in the same way other potentially pernicious products such as firearms, automobiles, and fireworks are regulated. As the National Research Council (NRC) report, Biotechnology Research in an Age of Terrorism, concluded with respect to dual-useresearch that “the key issue is whether the risks associated with misuse can be reduced while still enabling critical research

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to go forward.”33 The report recommends a series of educational tips, reporting methods, and oversight to accomplish this goal. Needless to say, there may be some research whose harmful applications are too likely and severe that allowing unfettered progress may be unacceptable.

XI. RESTRICTING SCIENTIFIC RESULTS

Another approach to address dual-use research is instead of prohibiting scientific experimentation, the state should restrict the publication of specific scientific results. For example, scientists should be able to sequence and analyze entire genomes of pathogenic organisms but should only report relevant findings without publishing the whole sequence data that terrorists could use to negatively modify such organisms. In 2007, The National Scientific Advisory Board for Biosecurity (NSABB) released a draft report suggesting that concerning research should be reviewed prior to publication, and in cases where the risks outweigh the benefits, the publication should be regulated either by: (i) modifying the manuscript to delete sensitive material; (ii) delaying publication; (iii) adding information that explains the context of the research; (iv) foregoing any communication and publication; or (v) limiting distribution of publications to qualified experts or those who “need to know.”34 Ultimately, this approach allows the public to still reap the benefits of dual-use research while minimizing the risks involved.

33 NATIONAL RESEARCH COUNCIL, BIOTECHNOLOGY RESEARCH IN AN AGE OF TERRORISM 19 (2004), 34 Proposed framework for the oversight of dual use life sciences research: Strategies for minimizing the potential misuse of research information, NSABB WORKING GROUP ON OVERSIGHT FRAMEWORK DEVELOPMENT, https://osp.od.nih.gov/wpcontent/uploads/Proposed-Oversight-Framework-for-Dual-Use-Research.pdf (last visited Apr. 27, 2022)

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XII. CODES AND GUIDELINES

Adopting consensus codes and guidelines is an effective tool of self-regulation that can readily adapt to unforeseen or rapidly changing circumstances. Generally, scientists are vastly aware of their professional standing and reputation among their fellow peers; thus, it is likely that responsible scientists will adhere to codes and guidelines promulgated by credible scientific institutions such as the National Research Council. Some examples of these self-regulatory initiatives include the NRC’s recommended code of practice for stem cell research,35 which highly discourages specific means of experimentation, such as placing human embryonic stem cells in primate brains. Additionally, a group of leading scientific and industry experts in synthetic biology provided the oversight framework for the field, particularly concerning the commercialization of DNA synthesis.36 Perhaps the most familiar is the recombinant DNA guidelines that were developed as a result of the Asilomar conference.37 Within the scientific community, these norms help foster a culture of responsibility that may be more effective than legal prohibitions.

XIII. DISCUSSION

The capacity for man to understand nature, to understand the universe through science rests on a meticulous method of discovering the truth and a strong willingness to change existing truths as research continuously generates new evidence. State and public interference with a scientist’s right to

35 NATIONAL RESEARCH COUNCIL, GUIDELINES FOR HUMAN EMBRYONIC STEM CELL RESEARCH (2005) 36 Hans Bügl, John P. Danner et al, DNA Synthesis and Biological Security, 25 NATURE BIOTECHNOLOGY 627– 629 (2007), https://doi.org/10.1038/nbt0607-627. 37 In February 1975, Paul Berg, Maxine Singer, and colleagues held a conference in Asilomar State Beach, California to discuss the potential biohazards and regulation of emerging biotechnology.

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research—to choose the ends and means of their projects—and obtain data to produce new truths is an interference with the universal criteria of validity that is crucial to the scientific community and fundamentally reduces its social utility.

Without a doubt, science is not an unconditional blessing of man’s intelligence. Like the Garden of Eden’s tree of knowledge, its discoveries can drastically augment man’s power for evil, such as the invention of the nuclear bomb. As a result, it is understandable why society, as it provides the resources, bears the costs, and reaps the benefits, may have an interest in the ends and means of scientific research. However, before the state may regulate such research, it needs to observe its limitations. Since research generates new knowledge that is potent for social and individual decision-making, regulating science becomes a matter of regulating the information available to the population for the multitude of private and public choices they may face. Generally, any government control over information is suspect; typically, they must comply with the substantive and procedural standards of the First Amendment. Despite research not being entirely a publication activity, it is a crucial precondition for publication. Overall, public disputes over research methods and goals continue to morph the boundary between science and society. This situation primarily involves questions of how new knowledge—its relative benefits and burdens— is to be distributed. Here ethics collide with social commitment to sway political decisions, within the First Amendment guarantees to assure that the costs of restricting or regulating knowledge to carry out other objectives are carefully weighed.In general, coming up with decisions that precisely outline what kind of research society should accept and the legal implementation of those decisions are problematic. Arguably, scientific research is sacrosanct, in need of self-determination, and to be minimally regulated by the coalescence of public and governmental forces. While there are an endless number of experiments that many people could imagine should be regulated from antibiotic-resistant bacteria to

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tinkering with embryonic stem cells, the First Amendment does not permit scientists from being persecuted as a result of their ideas or investigations unless such activities directly harm the safety or rights of non–consenting individuals. With this in mind, scientists dohave a constitutional right to research. It is what allows engineers to alter the code of life and will ultimately protect Galileo from the Roman Inquisition.

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