70 
oral cases a strong commitment to the principles of academic and intel- 
lectual inquiry and a presumption against governmental interference. 
In testimony last May before the House Subcommittee on Science, Re- 
search and Technology, Professor Thomas I. Emerson of Yale Law 
School expressed his belief that at least some aspects of recombinant 
DNA work must be characterized as deserving of First Amendment 
protections : 
The first question ... is whether the conduct involved in 
DNA research constitutes ‘‘expression'’ or “action." It seems 
to me that the development or exposition of theoretical ideas 
about DNA and other genetic materials and processes is 
clearly expression. Such conduct involves the search for truth 
in its primal form. The fact that the researcher works physi- 
cally with complicated equipment docs not deprive the con- 
duct of its character as expression. In similar fashion a tele- 
scope is used to study the stars, an accelerator to study nu- 
clear particles, a public address system to carry on a public 
meeting, and a xerox machine to make copies for distribution. 
The more difficult question is the classification of experimen- 
tation. Experimentation is a vital feature on the development 
of new information, ideas, and theories. This is particularly 
so in the physical sciences. One must conclude that it is often 
an integral part of scientific research, that is, a part of the sys- 
tem of freedom of expression. Analogous conduct is tile- 
marching in a demonstration, the publication of a newspaper, 
and the organization of a political party. Although all such 
conduct involves more than sheer thinking or verbalization, 
nevertheless it is an essential feature of a system of free 
expression. 
On the other hand, at. some point experimentation clearly 
moves into the realm of action. Just as political assassination 
has an element of expression but is basically action, so an 
experiment to rest a theory of nuclear energy which might 
blow up a city, or contaminate the atmosphere of the whole 
world, is also predominantly action. The line has to be drawn 
on the basis of all the facts in a particular case and — in light 
of the proper function of a system of freedom of expression 
in a democratic society. 
On the basis of present information available to me it is 
difficult to state more specifically what forms of experimenta- 
tion should be classified as expression, and what as action. It 
does seem clear, however, that experiments which pose a seri- 
ous threat to the physical health or safety of a community, 
must be classified as action. Such conduct is analogous to the 
use of violence against persons or property in a demonstration, 
or the throwing of rocks through the windows of the White 
House. The physical element of the conduct is the paramount 
concern, and the conduct therefore falls into the realm of 
action rather than the expression of ideas. 
On this analysis, the broad search for information about 
DNA, the formulation of hypotheses, the exposition and dis- 
cussion of theories and methods would constitute expression, 
[Appendix B — 329] 
