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United States Biotech

Law Professor: Genetic Engineering Is (Probably) Protected By the First Amendment 127

Jason Koebler writes: The dawn of cheap genome editing techniques such as CRISPR understandably have people across the political spectrum worried about what a future of designer babies, more pathogenic viruses, deextincted species, clones, and glow-in-the-dark sushi might look like. But does putting limits on genetic engineering violate scientists' constitutional rights? The First Amendment has been interpreted by the Supreme Court to encompass not just the freedom of speech, but also the freedom of expression and expressive conduct, which likely includes acts of science, according to Alta Charo, a bioethicist and law professor at University of Wisconsin Law School, who says that science is inherently political.
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Law Professor: Genetic Engineering Is (Probably) Protected By the First Amendment

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  • by turkeydance ( 1266624 ) on Tuesday September 15, 2015 @06:29AM (#50524135)
    just wanted to emphasize by repetition.
    • by drinkypoo ( 153816 ) <martin.espinoza@gmail.com> on Tuesday September 15, 2015 @06:40AM (#50524161) Homepage Journal

      All things of note are inherently political. If they involve more than one person with their own ideas and opinions, there's going to be politics. The world is a lumpy place.

      • by rmdingler ( 1955220 ) on Tuesday September 15, 2015 @07:01AM (#50524237) Journal

        ...there's going to be politics. The world is a lumpy place.

        This is the very thing that makes the playing field unlevel. There will be some nations, particularly in the West, concerned with restricting and regulating these genome-altering experiments.

        Caution will rule the day in many legislations, but there will be exceptions, and because of the ever present arms race, even the cautious nations will be tempted to ignore their own imposed limitations. As always.

        • by rwa2 ( 4391 ) *

          This is the very thing that makes the playing field unlevel. There will be some nations, particularly in the West, concerned with restricting and regulating these genome-altering experiments.

          Caution will rule the day in many legislations, but there will be exceptions, and because of the ever present arms race, even the cautious nations will be tempted to ignore their own imposed limitations. As always.

          Yep, knowledge is power. Science contributes to knowledge.

          The danger is when political people without knowledge play their political games to amass wealth and power and following. Unfortunately, they're very good at their games, so they can effectively preserve their own power by discrediting any science or bodies that don't support them.

      • by Anonymous Coward

        The world is a lumpy place.

        and all foamy in between the lumps. Speaking of which, if genetic engineering is protected, so is software. Is this a salvo in the struggle to reform the US patent system?

        • by bondsbw ( 888959 )

          Patents and copyrights are ideas that are empowered by the Constitution, but they form tension with the First Amendment. They provide economic incentive to produce works, which helps increase the flow of ideas and expression... but only to a certain degree.

          So far the ideal has been to balance the First Amendment with patents and copyrights. Whether this has been the most effective balance to achieve the goals of expression, I don't know.

          Genetic engineering certainly has this component of expression, just

          • But there are two areas I think that GMOs can become "bad":

            1) GMOs are marketed as if they were the original organism (which I believe constitutes fraud)
            2) GMOs produce an organism that is a threat to humans or our environment

            I think the socio-economic dangers of GMOs outweigh both of those, and at the very least make the list longer than "two areas".

            Transnationals owning IP on basic foodstuffs is a recipe for disaster. With ubiquitous nano-technology around the corner, this is a discussion that needs to h

            • Transnationals owning IP on basic foodstuffs is a recipe for disaster.

              The patent for the most important GMO trait (glyphosate tolerance) has already expired. So most GMO seeds are no longer covered by any patent. If future traits cost more that the value they add, farmers have the simple option of not using them. There are plenty of non-GMO seeds available, and non-GMO crops often sell at a premium.

              • The patent for the most important GMO trait (glyphosate tolerance) has already expired.

                And that's why Monsanto has been quick to market with Roundup Ready v2.

                http://www.monsanto.com/produc... [monsanto.com]

                • And that's why Monsanto has been quick to market with Roundup Ready v2.

                  RR2 provides no greater tolerance to glyphosate than off patent seeds. It has not been selling well. RR2 seeds are mainly used in fields that have high levels of glyphosate tolerant weeds.

                  • RR2 seeds are mainly used in fields that have high levels of glyphosate tolerant weeds.

                    Weeds can be spread on the wind and by birds just like crops, only moreso because those traits haven't been bred out, either deliberately or by accident while chasing other characteristics. And prevalence of those weeds is a natural consequence of ongoing use of glyphosphate. QED, one thing leads to the other.

          • by jbengt ( 874751 )
            I don't see how there is much tension between patents and the First Amendment - patyents (supposedly) require disclosure of their concepts and methods and do not typically restrict research and education regarding the patent.
            Copyrights do seem to be in tension with the First Amendment, which is part of the reason we have exceptions for fair use, criticism, parody, and the like.

            The author laid out a fairly good case for a First Amendment right to free scientific inquiry (experiment, discussion, and dissemi
        • For that matter, why not nuclear weapons? My new fusion bomb design is a matter of personal expression, where does the government get off telling me I can't build it?

  • Yeah right. (Score:4, Insightful)

    by h33t l4x0r ( 4107715 ) on Tuesday September 15, 2015 @06:30AM (#50524141)
    By that interpretation blowing up the moon is protected speech.
    • And, you could argue, murder would be protected speech if done to perform a scientific study.
    • Not quite - doing the research required to know how to blow up the moon and then telling everyone how to blow it up is apparently what this guy thinks is protected. The tortuous logic is that activities required for communication are protected and, before you can communicate scientific knowledge you have to have found that knowledge and so therefore scientific research is protected.

      This is clearly nonsense. You can communicate scientific ideas freely without knowing that they are right. Indeed this is wh
      • It's not really the same. Sure anyone could come up with a plan to clone humans for instance, but without testing on real embryos and viability by implantation it probably won't be a working plan. The testing part would be the illegal thing.

    • by jbengt ( 874751 )

      By that interpretation blowing up the moon is protected speech.

      RTFA (not the web article, the law journal paper)

  • ... of my US laboratory's work to create a race of mutant tentacle monsters!

  • That's ridiculous (Score:5, Interesting)

    by dskoll ( 99328 ) on Tuesday September 15, 2015 @06:45AM (#50524179) Homepage

    I think some types of genetic engineering such as, say, creating a strain of HIV that's as easily transmissible as the common cold, would be the scientific equivalent of shouting "Fire!" in a crowded room and are thus not protected forms of expression.

    • by houghi ( 78078 )

      More like starting the fire, but I'll go with it:
      OK, however a strain that will see to it that nobody can get cancer would be a great idea. Right?

      So where do we draw the line? Will a fetus that aborts it self if it would not be able to live a good thing or a bad thing? What are the long term consquences if we won't have a cold anymore? What if the long term is bad and the short term is good? What if it is the otherway around?

      • by dskoll ( 99328 )

        I don't know where we draw the line. It has to be decided on a case-by-case basis. The real world, unfortunately, is full of hard problems that don't have simple answers. That's a rather unpopular sentiment in the US if you're trying to get elected, however.

    • by Falos ( 2905315 )
      The shout DOES have protection.

      The protection does NOT supersede the "endangering human life" offense. The government (criminal system) CAN suppress that dangerous offense; the speech only happens to be suppressed incidentally.

      The question, then, is whether the "engineering of superAIDs" falls under these or other suppress'able terms. Some rogue group can easily be construed as "endangering human life", but consider engineering done in quarantine, for the sake of cure research.

      Unfortunately, leanin
  • by Anonymous Coward

    ... and watch the US Government restricts it anyway.

    Hands up, who thinks the US Government cares what your Constitution protects or not?

  • > recombinant-DNA technology,' the first piece of basic research to expose the public-at-large to an immediate threat of
    harm.

    The invention of fire, nuclear power, and basic reasearch into poisons don't count? And later on:

    > "isotope separation" could disclose a cheap and abundant energy source for nuclear weapons

    It's not "cheap". The expense of isotopic separation is one of the factors that limit nuclear proliferation.

    The ideas in the legal analysis are interesting and lay out some of the free speech

  • We might want another amendment. The first amendment is,pretty plainly written, and it protects four things:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    That's what the first amendment protects. Freedom of speech, the press, right to assemble, and petition. That list is followed

    • Clause 3 (to peacably assemble) and clause 4 (to petition the government) are quite clearly political. Restrictions on gatherings are common and vital, parts of a state protecting itself from its own citizens and from any groups that might confront or overwhelm those of the state itself. Take a good look at the "Arab Spring" gatherings, or of the British restrictions on gatherings before and during the American Revolution, or even look at the national conventions for presidential candidates for examples.

      • No, it leaves interpretation of the Constitution in the hands of the Supreme Court.

        No, actually it doesn't. That's a power the Supremes took on themselves back in the nineteenth century. Because someone had to do it, and the Constitution didn't actually specify who that someone was.

        Note that (from what I've read), the assumption was that a Constitutional Convention would fix little interpretation issues that the normal Amendment process couldn't deal with.

        Note also that letting the Supremes do it keeps

        • People seem to forget that Marbury v. Madison is what established Judicial Review. Not the Constitution explicitly. I don't necessarily disagree with the concept of Judicial Review myself. But I do sometimes disagree with how it's been implemented as time goes on.

      • Article III says that the courts shall rule as to the facts of a case (did he do the crime or not?) and which law is applicable (is it theft or embezzlement?). No part of the Constitution anywhere says that the courts may change any law, much less change the Constitution itself. The two process for changing the Constitution is in article V, which lists the two ways that it may be done.

        In the wheat cases, the SC did essentially claim that they had the power to rewrite the interstate commerce clause, by rem

        • The Supreme Court never has claimed it had the power to rewrite the Constitution, or to change its meaning. It interprets the Constitution, which is hardly unambiguous, and has made a few decisions I consider pretty bad.

          • I suppose your right, "claimed" the power isn't exactly the right word. They've simply declared new amd different wording, without explicitly claiming the power to do so. Perhaps I should have said "asserted" the power or "assumed" the power, rather than "claimed" the power.

            You mention the wording of the Constitution can sometimes be ambiguous. Sometimes, it is. Sometimes, the SC asserts that the words "regulate interstate commerce " shall mean "prohibit things which are neither interstate nor comme

            • The Supremes have not declared any wording changes. They have made interpretations of words that you disagree with (and I disagree with that wheat ruling also). Most of the Constitution is ambiguous or unclear when it comes down to details.

      • Each of the three branches is required to act within the limits of the Constitution, and thus each branch in deciding how to act must "interpret" the Constitution. The legislature must interpret the Constitution in order to determine whether the laws it passes are constitutional (a task it has been failing at), and so must the executive in signing off and acting on laws (also failing). The Supreme Court is the last branch to get a shot at a law, so it has the appearance of being the sole arbiter of constitu
        • > Note that if the Congress were not being so wimpy, it could pass the same law again with a minor change in wording, and again, and again, and the court's reaction time would leave the law in effect more of the time than not.

          Oh, they do. When they're wise, they consider the Constitutional concerns brought up by the court and make a "minor change" that addresses that concern.

          Other times, the court is so loathe to confront Congress that they rule that the item is a) a tax, and therefore within the powe

    • Political messages have been ruled to have LESS protection, not more.

      It depends. Where I live, you can't be ordered to take down a political yard sign, but business signage is strictly limited.

  • by Anonymous Coward on Tuesday September 15, 2015 @06:57AM (#50524227)

    Not Pieceably assemble...

  • by Chrisq ( 894406 ) on Tuesday September 15, 2015 @07:03AM (#50524245)
    So would building a bomb in a basement be an expression of free speech? After all it could be fundamentally saying "I think XXX should be blown up"! The Muslims will be pleased.
    • The Progressive case [wikipedia.org] is interesting here. A magazine intended to publish information on how thermonuclear weapons work, and the government filed suit to stop them. (I think they should have published first, myself.) The legal wrangling almost bankrupted the magazine. Unfortunately, there never was a decision, the government dropping its case when it became clear that the Progressive was just repeating things found in other public sources.

    • by Anonymous Coward

      Your rights cannot violate the rights of others.

  • I admit that I'm not an advanced First Amendmentologist; but haven't speech acts (whether for highflown theoretical reasons or just in practice) tended to enjoy less protection as they get closer to being things that are criminalized for other reasons; that just happen to be done by means of speech in this particular instance?

    If, say, I cash a bad check, that check is as much a speech act as the declaration of independence is(yes, both are actually writings; but bear with me); but I generally don't get t
  • So by that measure, hacking is protected speech too.

    I'm sorry, but just like yelling "FIRE" in a theater is forbidden, so too would be crafting a genetically modified bacteria or virus for malice.

    • by Anonymous Coward

      It is code, and as such writing out of malice would not be protected. However, if I release a bit of GPL code into the world for some or other thing that everyone wants but no one has, like a universal codec for video that runs great on phones, roku, apple tv, etc, and some one uses that to pirate video..... see the thinking about code and genetics. It is already there but until someone discloses how to use it, it has no real meaning, just code, just letters, just AGCT.

      I am a lawyer, I am a scientist, I

  • I could claim burying an axe in someone's head as performance art. It is requires creativity and technical skill, and creates an emotional reaction in the audience. But I don't think I could claim that this is protected by the First amendment.
  • Apparently this "law professor" has CJD or perhaps a brain tumor; there's just a bit of a difference between publishing modifications to genetic sequences (i.e. exercising one's write to free speech) and actually implementing those modifications in the physical world.

    The logic really isn't that hard to follow except, perhaps, for certain law professors:..

  • Science FUNDING is political. Scientists are driven by MONEY.

    Whenever someone (usually a creationist) tries to tell me about conspiracies in science, I have to laugh. Whether you're working in industry, a university, a national lab, or in your own garage, most scientific endeavors cost money. And when it comes to funding for science, the money is painfully limited. The rejection rate of NSF proposals is somewhere between 80% and 90%. This means there's fierce competition, and scientsts are as competive

    • How does an example of a paper being rejected by one journal (even on stupid grounds) and published by another show that research gets suppressed?

      I think that if a scientist found a real, objective problem with evolution, that it would be published. (Getting funding would be a real problem.) Also, a scientist cannot find a hole in a theory and declare it unexplainable. It's not going to be considered unexplainable until lots of people have had a crack at it.

  • My liberty to swing my fist ends at the tip of your nose.
    My right to free speech ends when I write on your skin with a scalpel.
    My right to string DNA sequences together ends when I implement them in a legally-protected human or animal.

  • Finally! A loss for the ludites!

  • And most of the time, it works. There will always be bad actors, but the majority of scientists operate within the accepted ethical parameters of their field. In a similar vein, human cloning is generally accepted to be unethical.
  • Didn't anyone RTFAT(itle)P(age) ?
      If this position had any serious acceptance in the legal community, you'd think we'd know about it 36 years after publication.

    Any lawyer can claim anything. Especially if you pay them. Getting other lawyers (judges in particular) to agree takes a little more work.

    • by jbengt ( 874751 )
      Yes, I did. But I also read almost the entire article and, as usual, the Slashdot summary does not reflect the actual positions taken in the publication.
  • And yet, somehow a chunk of those supporting this Libertarian school of thought would still furiously oppose a women from controlling her own body.
  • And my DNA is my body.

    Get your His-tag modified viral scripts out of my DNA and my circRNA!

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