60 
ideas and theories could be identified as expression. On the other hand, 
the classification of experimentation which seemed to threaten the 
public health might possibly be considered as action, and thus subject 
to regulation. 
With regard to the classification of experimentation as action, 
Professor Emerson suggested that undoubtedly there would be some 
experimentation which would be expression since the experimental 
method is so much an integral part of scientific inquiry. At the same 
time, when experimentation can clearly be identified as having the 
potential for harming the public health or safety, then such experimen- 
tation probably would fall within the category of action subject to 
regulation. He recognized that there would be a large gray area in 
which the clear identification of this transition from expression to 
action would be difficult. In fact, this matter is the subject of much 
debate between those who perceive little or no risk in recombinant 
DNA basic research and those who see great potential hazard. 
Protection of Ideas 
Thus, Professor Emerson suggested that the theoretical develop- 
ment of DNA research and the discussion of the ideas associated with 
such research are fully protected under the first amendment and any 
attempt to control or prohibit such research would be unacceptable. 
Any attempt to prohibit or impose restrictions on thinking, talking 
and theoretical development would be unconstitutional. He did indi- 
cate, however, that there are instances in which the Supreme Court 
has not exhibited agreement with his perspective of the first amend- 
ment and he cited several cases to illustrate this departure from his 
analysis. The doctrine which Professor Emerson believes should be 
applied to any examination of first amendment issues in scientific 
research is a structured balancing test composed of two elements. 
The two elements of the doctrine described by Professor Emerson 
are: compelling reasons; and “least drastic means.” By this, he 
meant that the burden of proof should be on the Government to 
show that there is a compelling reason for regulation, and second, that 
the Government should use the least drastic means possible to achieve 
the objectives of the regulations. For example, a compelling reason 
would be an indication of a serious danger to the public health. 
The least drastic means would include such considerations as tem- 
porary regulations rather than permanent regulations ; limited restric- 
tions rather than prohibition; if licensing is not required, do not 
license; and other similar examples. Professor Emerson also believes 
that once the determination is made that regulation is required, these 
regulations should be established by a single source, in this case. 
Federal regulations. Regulations by States or local communities could 
result in suppression of scientific information and would not be con- 
sidered the least drastic means. Finally, in any instances where regula- 
tion is determined to be required, there should be strict procedural 
safeguards. He referred to these procedures as first amendment due 
process and indicated that such processes would be particularly appli- 
cable in any regulation of scientific research. 
Unlike Professor Barron, Professor Emerson indicated that the 
courts have a very important role to play in the public examination 
of such issues as have been highlighted in the debates on DNA recom- 
binant research. Professor Emerson expressed his agreement with 
[Appendix B — 109] 
