Читать книгу Culture Clash - Steven Goldberg H. - Страница 22

There is, however, an important tension in this constitutional framework. In giving out its money to scientists, the government necessarily chooses among competing applicants. Those who lose out are free to pursue their research, but their freedom may often be theoretical, given the costs of research and the federal dominance in funding that research.

Obviously science is treated differently in our constitutional system than religion, because the First Amendment bars government funding of the latter. But the special status of science under our constitution is best illustrated by contrasting it with the status of the arts and politics. Literature and the arts are usually described as enjoying the same First Amendment protection as science, the Supreme Court having held that the First Amendment protects “serious literary, artistic, political [and] scientific” works.¹²³ Actually, science may fare better when we recall, for example, that novels by Edmund Wilson and Henry Miller have been banned under varying tests of obscenity, whereas sex manuals of rather limited importance have long been protected because they fall into the category of science.¹²⁴

The greatest contrast, however, between science and the arts appears in the relationship between freedom and funding. Federal spending for the arts lacks the built-in impetus of the military and standards clauses, as well as the historical association of science spending with the general welfare. Thus government spending for the arts, although constitutional, has remained quite low, and, even with recent increases, is a tiny fraction of spending for science.¹²⁵ Yet even with support for the arts at such a low level, many artists (not to mention politicians) believe that government funding raises troubling questions concerning government domination of the artistic impulse and government support for “popular” rather than “elite” artistic endeavors.¹²⁶ By contrast, scientists are relatively comfortable with their status as recipients of federal largess despite the far more intimate relationship between government and science. Questions are raised about whether the right scientists are receiving funding, but science in this country long ago crossed the bridge that the arts confront only in the distance. Science is to a large extent a government endeavor, and yet scientists have continued to enjoy considerable intellectual freedom.

Nothing inherent in the nature of art or science compels this unequal status. In Europe, government support for art historically has been far greater than in this country, with no apparent loss of creativity.¹²⁷ In contrast, twentieth-century experience in Germany and the former Soviet Union indicates that government domination of science can have unfortunate consequences for the scientific endeavor. Under the Nazis German researchers had to avoid anything that smacked of “Jewish science,” whereas in the Stalinist Soviet Union government support of Lysenkoism hampered the development of biology for years.¹²⁸ Thus the role of science in American society does not stem from the nature of science itself but rather, in large part, from its unique constitutional status. Funding is combined with protections for scientific freedom, and scientists routinely call for increased appropriations while vigorously invoking the name of Galileo when restrictions on their private inquiries are broached or when the government tightly controls how its research money is spent.¹²⁹

The status of science under the Constitution also contrasts sharply with the place of political speech in the United States. Politics enjoys the same free speech protection as science,¹³⁰ although, as with the arts, science may actually fare better in practice.

In Buckley v. Valeo, for example, the Supreme Court upheld a congressional limit on the amount an individual can contribute to a political candidate.¹³¹ The Court found justification for this limit in the corruption and the appearance of corruption when large private contributions dominate an election campaign. The Court specifically cited corrupt practices in the 1972 elections.¹³² Given the absence of any similar concerns involving private contributions to scientific research, it is not at all clear that Congress could constitutionally limit an individual’s freedom to contribute to another’s efforts to communicate a scientific theory.

Furthermore, in politics as in the arts, the biggest contrast with science is the relationship between freedom and funding. Supporting politics through government funding raises important First Amendment problems, even when the amount of money involved is small compared with the amounts spent on science. Thus, in Buckley two Supreme Court justices believed that federal funding of presidential campaigns was unconstitutional given the disadvantage this system creates for minor parties who are not funded.¹³³ Chief Justice Burger even analogized the dangers of political funding to the dangers of establishing religion.¹³⁴ Although the majority of the Court upheld the funding scheme on its face, they noted, “we of course do not rule out the possibility of concluding in some future case, upon an appropriate factual demonstration, that the public financing system invidiously discriminates against nonmajor parties.”¹³⁵

Federal funding of science is not perceived as raising such questions. The scientists who do not receive funding are certainly disadvantaged in developing and presenting their theories in the marketplace of ideas, but that price must be paid to maintain science’s unique dual status as supported and free.

Indeed, even this price is not as high as it might be because of the final episode in the favored constitutional status of science. Typically, when the government funds an activity it has the power to attach strings that might otherwise violate individual rights. But this power has been narrowly construed when it is a science program that is being supported.

The leading modern case on government power in this area is the Supreme Court’s 1991 decision in Rust v. Sullivan.¹³⁶ In a controversial 5—4 ruling, the Court held that recipients of federal family planning money could be prohibited from engaging in abortion counseling and referral. The Court reasoned that recipients could advocate abortion on their own time, but they were bound by the government’s restrictions when they were performing services supported by government money. Neither free speech rights nor the right to an abortion could overcome the government’s ability to attach strings to its largess.

Shortly after Rust was decided, a federal district court was presented with a case that the government maintained was indistinguishable. Board of Trustees of Stanford University v. Sullivan¹³⁷ arose when the National Heart, Lung, and Blood Institute of the National Institutes of Health decided to award a contract for a five-year research project on an artificial heart to Dr. Philip Oyer of Stanford Medical School. A confidentiality clause in the grant required Dr. Oyer to give a government contracting officer forty-five days advance notice of his intent to publish preliminary findings. If the officer objected to publication, further review by the government was available. But ultimately the doctor would have to go to court if the government continued to oppose publication. The basis for these government regulations was a desire to prevent the Stanford researcher from issuing “preliminary unvalidated findings” that “could create erroneous conclusions which might threaten public health or safety if acted upon,” or that might have “adverse effects on … the Federal agency.”¹³⁸

When Stanford challenged the confidentiality clause in court, federal judge Harold H. Greene rejected the government’s argument that this was no different than the restriction on speech upheld in Rust v. Sullivan. Greene maintained that whereas the grantees in Rust remained free to advocate abortion on their own time, Dr. Oyer was barred from ever discussing his artificial heart research during the five-year grant period. The court noted that, although the confidentiality clause only applied to this government grant, it would be hard to police the statements of Dr. Oyer to see if he was referring to work under the grant, because he had worked for almost twenty years in the artificial heart field.¹³⁹ Finally, Greene maintained that the government’s standards for restricting speech—“unvalidated findings,” “threaten public health and safety,” and so on—were too vague to be constitutionally permissible.¹⁴⁰ Thus Greene invoked the full force of the First Amendment’s free speech clause to remove this limit on the freedom of a scientific researcher.

It may be that Judge Greene was simply distinguishing Rust and protecting free speech as an abstract proposition. But the distinctions he drew are not self-evident. The grantees in Rust could advocate abortion “on their own time” because the government interest in that case was precisely that abortion not be advocated in a particular federally funded program. The government interest in the Stanford case was that the public not be misled by preliminary and misleading results obtained from federally sponsored research. That danger is just as great no matter when during the day the researcher talks about those results.

In reality, Judge Greene had flexibility in deciding whether the restriction in Stanford would be characterized as a reasonable effort to achieve a valid government aim or as a clumsy, overbroad attempt to extend the hand of government too far. A major factor in his decision to take the latter course was the weight he gave to scientific values and the views of the scientific community. He stressed, for example, that it was troubling to have a “non-scientist contracting officer” tell “Stanford University, a premier academic institution, engaged in significant scientific and medical research” what constituted “unvalidated findings.”¹⁴¹ He noted that even “in the Soviet Union, where Joseph Stalin at one time decided what could be published and by whom, the dead hand of government control of scientific research and publication is apparently no more.”¹⁴²

It would be a mistake to conclude that the government cannot attach any strings to research projects it funds. It can, after all, attach the biggest string of all—it dictates what sort of research the money is to be used for. But the Stanford case shows that in this area of constitutional law, as in others, the science community fares rather well indeed.

Thus government funding plays a central role in the constitutional framework that shapes American science. But precisely how funding decisions are made is not resolved by the Constitution. We must turn to the statutory controls on scientific research to understand that crucial question.