Читать книгу Culture Clash - Steven Goldberg H. - Страница 19

The most dramatic example of that impact came in the First Amendment’s requirement that “Congress shall make no law … abridging the freedom of speech, or of the press,” a restriction on government designed in part to assure freedom for scientists. America’s founders believed that the protection of civil liberties in a free state was essential to the growth of science, a growth they strongly favored. This idea found expression in the poems of the Jeffersonian journalist Philip Freneau, who wrote in “The Rising Glory of America” that without “sweet liberty … science irretrievably must die.”¹⁶ The Enlightenment union of political and scientific progress was also reflected in Freneau’s “On the Death of Dr. Benjamin Franklin”: “Who seized from Kings their sceptred pride, and turned the lightning’s darts aside!”¹⁷

Rittenhouse and Rush were among the numerous other writers and orators who explicitly linked scientific progress with civil liberty.¹⁸ Jefferson, in a 1789 letter to the president of Harvard College, concluded a call for research in botany, mineralogy, and natural history with the same message: “It is the work to which the young men, whom you are forming, should lay their hands. We have spent the prime of our lives in procuring them the precious blessing of liberty. Let them spend theirs in showing that it is the great parent of science and of virtue; and that a nation will be great in both always in proportion as it is free.”¹⁹

The notion that free speech applied to science was an inevitable result of the idea that proper political decisions came not from monarchical pronouncements but from the application of scientific thinking to social problems. Thus Jefferson, in opposing tariffs on learned treaties, observed that “[s]cience is more important in a republican than in any other government.”²⁰ Indeed, Jefferson’s devotion to the free exchange of scientific ideas may have exceeded his devotion to the free exchange of political views that differed from his own.²¹

The intimate relation between science and civil liberty is illustrated in a 1774 letter from the Continental Congress to the inhabitants of Quebec that described freedom of the press as important in part because it advanced “truth, science, morality, and arts in general.”²² Limiting free speech and press to narrowly political concerns would have been unthinkable; freedom that did not reach the work of Galileo, Newton, and Franklin did not reach far enough.

Judicial interpretations of the speech and press clauses accord science the protected status envisioned by the framers of the Constitution. We are concerned here with the application of those clauses to scientific publications. Chapter 6 discusses the very different constitutional status of technological applications.

The case law makes clear that First Amendment protection from government regulation applies when scientific results or theories are published. Obscenity decisions furnished the earliest demonstration. The first major obscenity precedent relied on in the United States was articulated in 1868 in the British case of Regina v. Hicklin.²³ Although Hicklin did not concern a scientific publication, Chief Justice Cockburn noted during oral argument that “[a] medical treatise, with illustrations necessary for the information of those for whose education or information the work is intended, may, in a certain sense, be obscene, and yet not the subject for indictment.”²⁴ This straightforward recognition that a ban on sexual matters per se would hinder science and is therefore unacceptable became one of the few consistent threads in the development of obscenity law in the United States. Early decisions limited circulation of medically oriented sexual materials to doctors and students, but by 1940 it was reasonably clear that anyone could have in their homes medical encyclopedias or sex manuals.²⁵

Thus, by 1957, when the Supreme Court decided Roth v. United States,²⁶ which set forth a general test for obscenity, science was safely outside the category of the obscene. The government conceded as much in its brief in Roth.²⁷ The Court, while holding that obscenity lies outside the realm of the First Amendment, squarely held that the portrayal of sex in “scientific works is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.”²⁸ This principle was applied shortly after Roth to protect the importation of material for a university’s sex research institute, and the principle has not been challenged successfully since.²⁹ When the Court, in the 1977 case of Miller v. California,³⁰ changed the test for obscenity, the status of science was retained. The Court held in Miller that the “First Amendment protects works, which taken as whole, have serious … scientific value.”³¹ Indeed, in his opinion for the Court in Miller, Chief Justice Burger’s sole illustration of protected material resembled Chief Justice Cockburn’s observation 105 years earlier: “Medical books for the education for physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy.”³²

In a variety of other contexts, the courts have given scientific material the same high level of protection given to political and social commentary. Prior restraints are extremely difficult to justify;³³ thus a state, through its dental society, cannot require prior approval of a radio broadcast on “scientific dental matters.”³⁴ Legal redress for inaccurate reporting must allow leeway for unavoidable mistakes to avoid chilling the dissemination of knowledge;³⁵ thus, the First Amendment protects a publisher from a suit based on lost profits stemming from a mistake in its chemical encyclopedia.³⁶ Accurate advertising is also entitled to First Amendment protection;³⁷ thus a scientific laboratory can advertise that it will test cholesterol levels for a fee.³⁸

First Amendment protection is no more absolute for scientific speech than for any other variety.³⁹ National security considerations have at times led the government to restrict the dissemination of certain scientific information, usually by classifying such information pursuant to executive order.⁴⁰ The classification of scientific work was most widespread during and after World War II when basic advances in nuclear physics were tied intimately to the construction of nuclear weapons.⁴¹ In the postwar period, when First Amendment rights generally fared poorly, scientific work was hampered by severe security restrictions on research and even on teaching, particularly in the area of nuclear physics.⁴²

The courts have had little occasion to define precisely the limits of the government’s power to classify scientific material. Courts and scholars generally agree that technological plans for advanced weapon systems can be subject to restrictions and even prior restraints. After all, the classic case for a valid use of prior censorship is to prevent publication of “the number and location of troops”;⁴³ revelation of the design of a secret weapon would have at least as great an impact on national security. Thus it is not surprising that in 1979 a federal district court enjoined publication of an article that purported to give details on how to build a hydrogen bomb.⁴⁴

At the other extreme, basic and widely known scientific truths cannot be suppressed merely on the ground that they can be used to build weapons. As the Supreme Court has stated, a state may not “prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.”⁴⁵ Only a significant imminent threat to national security can justify the removal of scientific material from public view.⁴⁶

The view that science is fully protected by the speech and press clauses is not undercut by occasional academic and judicial statements that “political” speech of one type or another lies “at the core” of First Amendment values.⁴⁷ As leading First Amendment scholars have long recognized, suppression of scientific information is inconsistent with the democratic political process.⁴⁸ When a scientist publishes a theory on the consequences of power plant emissions, for example, that theory has at least as much relevance to a political controversy on power plant location as does a local politician’s speeches. Even when scientific work is not immediately applicable to political controversies, it plays an important role in maintaining a free and informed society. Such was the view of the framers, and it has been the consistent view of the courts. Thus, the observation that political speech lies at the core of the First Amendment does not mean that scientific speech lies elsewhere.