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.
science is inherently political. (Score:4, Insightful)
All things are political (Score:5, Insightful)
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.
Re:All things are political (Score:5, Insightful)
...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.
Re: (Score:2)
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.
Re: (Score:1)
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?
Re: (Score:1)
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
Re: (Score:2)
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
Re: (Score:2)
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.
Re: (Score:2)
And that's why Monsanto has been quick to market with Roundup Ready v2.
http://www.monsanto.com/produc... [monsanto.com]
Re: (Score:2)
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.
Re: (Score:2)
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.
Re: (Score:2)
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
Re: (Score:2)
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?
Re: (Score:2)
This is why it is important to define things carefully, and clearly specify what is being talked about. Science, as a study of what is, is not political. Scientists individually and in groups making changes that do not affect other people (including funding) are not acting politically. Voluntary subjects of scientific experiments are not engaging in political activity as long as the experiments don't directly affect people outside the experiment.
It is important not to define politics too broadly, because po
Re: (Score:2)
As long as science is being done by human beings, it will be political.
See: "Economics".
Re: (Score:2)
>How on earth could observing world and recording said observations be POLITICAL?
First question.
How much time do you have? How much energy do you have to expend? How much can you observe?
Now, you should easily see that the answers to those questions are 'exceptionally limited'. To further observe the world you are going to need to convince others that they should share your same goals on what you want to observe. Once you have more than one person involved in a project, politics is involved.
You: But scie
Re: (Score:2)
Science has zip to do with politics. Scientists, science lab, science funding, these can be political
Well, being as we can only view "science" through our flawed human lenses right now, the distinction is pedantic. It's sort of like asserting that there is a true, objective "history," as if "history" can somehow be separated out from "human interpretation of history."
Yes, there are certain physical laws which we believe are universal. But discovering those laws, agreeing on them, the debate over just how universal they are, modifying/rejecting them as new models emerge, etc.--those are all still going to b
Re: (Score:2)
It's sort of like asserting that there is a true, objective "history," as if "history" can somehow be separated out from "human interpretation of history."
That is wrong for different reasons. History is affected by the perceptions and interpretations of humans about said history.
Re: (Score:2)
Time by it's transient nature makes anything that has come and gone already a very problematic thing to study. Evidence is limited and indirect. It makes guesswork highly likely at which point bias and perception become a much bigger problem.
Somewhat old textbooks (or video) are a great way to view this effect in action.
Re: (Score:2)
Burrrrr, wrong. The perception and interpretation of historical events affects events in the present. From the near history of yesterday to the far history of hundred if not thousands of years. You don't think the reinterpreting of history by the Nazis affected how the Germans acted? Or how the interpretation of Jews about Israel affects how they treat the issue today?
It's so nice that you can call people drunk and stupid when you're hiding behind your AC.
Re: (Score:2)
The distinction is meaningless because we can only view science through our flawed human perception and understanding. Even if there is an objective reality, we're never going to be able to perceive it outside of our subjective experience.
Re: (Score:3)
Until you have unlimited energy, unlimited storage, and unlimited time, science is going to be political.
There are unlimited truths out there, you have to somehow decide what and where the available resources you have will be expended. One person may not want to die from old age, another wants to avoid dying of AIDS. Now you have a conflict for resources based on differing goals. How are you going to decide who gets the funding?
Yeah right. (Score:4, Insightful)
Re: (Score:2)
Tortuous Logic (Score:2)
This is clearly nonsense. You can communicate scientific ideas freely without knowing that they are right. Indeed this is wh
Re: (Score:2)
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.
Re: (Score:2)
Yes, but they didn't go as far as the Slashdot headline - they outlined the conditions under which the government could restrict it and the extent to which it could be restricted (assuming the supreme court follows precedents on similar/analogous cases)
No - RTFA (The law review article, not just the Slashdot summary or the motherboard.vice web page)
Re: (Score:2)
RTFA (not the web article, the law journal paper)
Great to know that nobody can stand in the way... (Score:2)
... of my US laboratory's work to create a race of mutant tentacle monsters!
Re: (Score:2)
P.S. It doesn't work out [wikipedia.org] too well...
Re: (Score:2)
Are you kidding? It'll work out great! [tvtropes.org] Think of the cuddling potential [deviantart.com]! Okay, okay, sometimes it might be a bit awkward [deviantart.com]...
Re: (Score:2)
I'm not gonna click that last link, I'm just gonna assume NSFW.
Re: (Score:2)
Not to the degree that you might think.
Obligatory Oglaf (Score:2)
Re:Great to know that nobody can stand in the way of my US laboratory's work to create a race of mutant tentacle monsters!
Oh no! Better legislate NOW to nip it in the bud!
http://oglaf.com/ladder1/ [oglaf.com]
http://oglaf.com/ladder1/2/ [oglaf.com]
Re: (Score:2)
Your harvester is an engineering implementation, not science, and as such is subject to patents.
That's ridiculous (Score:5, Interesting)
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.
Re: (Score:2)
Re: (Score:2)
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.
Re: (Score:2)
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
Just like encryption (Score:1)
... and watch the US Government restricts it anyway.
Hands up, who thinks the US Government cares what your Constitution protects or not?
Re: (Score:2)
Most of the US population doesn't care what the Constitution protects or prohibits. Why should the government be any different?
Re: (Score:2)
A hybrid rose is biological warfare? A plumcot is biological warfare?
I know it's tough, but if you're not trying to make a joke, you should consider the full implications of your words.
Dead wrong in the first paragraph? (Score:2)
> 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
people are forgetful . political?! (Score:2)
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
Re: (Score:2)
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.
Re: (Score:2)
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
Re: (Score:2)
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 V specifies how changes are made (Score:2)
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
Re: (Score:2)
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.
true, they just rewrote it (Score:2)
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
Re: (Score:2)
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.
Re: (Score:2)
Re: (Score:2)
> 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
Re: (Score:2)
It depends. Where I live, you can't be ordered to take down a political yard sign, but business signage is strictly limited.
Eyeball fail (Score:2)
That's true, somehow my eyes skipped passed the first one. I did, however, copy and paste the full text of the first amendment, so it was included in my post.
Peaceably assemble (Score:3, Funny)
Not Pieceably assemble...
Re: (Score:2)
Where are my mod points when I need them?
Re: (Score:2)
So would building a bomb in a basement? (Score:3, Interesting)
Re: (Score:2)
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.
Re: (Score:1)
Your rights cannot violate the rights of others.
Ummm....What? (Score:2)
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
Re: (Score:2)
Re: (Score:2)
Of course context is everything...
When burning a flag into oxidized carbon ash in a national forest where it is tinder is dry because of a drought with high winds and a high fire danger, you aren't going to be charged with any crime regarding the flag, and the mere fact it was a flag you are burning isn't gonna matter much. FWIW, it'll also be a crime even if you don't start a forest fire with your flag-like object burning ACT...
Similarly, the government may be able to prohibit most practices of genetic en
Re: (Score:1)
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
Bit of a stretch (Score:1)
Um, sure... (Score:2)
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:..
Re: (Score:2)
Scientists are driven by money (Score:2)
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
Re: (Score:2)
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.
Sequence is protected speech, implementation is no (Score:2)
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.
Re: (Score:2)
I didn't say they had constitutional rights, I said they were legally protected. Try vivisecting your dog in the park and see what happens to you.
Way to go Supreme Court! (Score:2)
Finally! A loss for the ludites!
Science self-regulates on ethics (Score:2)
1979 (Score:2)
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.
Re: (Score:2)
And yet (Score:2)
Your right ends at my body (Score:1)
And my DNA is my body.
Get your His-tag modified viral scripts out of my DNA and my circRNA!