71 
and be fully protected under the First Amendment. Thus the 
government could not prohibit, regulate or discourage in any 
way DNA research on the ground that mankind ought not to 
be pursuing ideas about ways to develop new forms cf life. On 
tho other hand experiments that presented a substantial and 
serious danger to the physical health and safety of the sur- 
rounding population could be subject to regulation without 
infringing the guarantees of the First Amendment. Only the 
requirements of due process, equal protection and other con- 
stitutional provisions would be applicable to such regulation. 
[Emphasis added.] 
We are thus confronted with the additional problem that the pro- 
posed regulation may result in stifling the freedom of scientific inquiry. 
Using the framework developed by a noted constitutional law scholar 
at Harvard, Laurence H. Tribe, government regulation of DNA re- 
search might be described as being “aimed at noncommunicative im- 
pact but nonetheless having adverse effects on communicative oppor- 
tunity.” 3 Government action in a case of this sort requires the bal- 
ancing of competing interests. According to Mr. Tribe, “regulatory 
choices aimed at harm not caused by ideas or information as such are 
acceptable so long as they do not undid]/ constrict the flow of informa- 
tion and ideas.” * Presented with this difficulty should DNA research 
be characterized as having constitutional implications, the courts may 
be unwilling to uphold the use of section 361 for a purpose not clearly 
intended when the law was enacted. 
Although there is little legal authority related to this problem, a 
recent case involving the Federal Communication Commission's reg- 
ulatory authority over cable television suggests that agency jurisdic- 
tion, even when its mandate is broad, is not without limits. Rome Box 
Office, Inc., v. FCC.. 567 F2d 0 (C.A.D.C. 1977) . In that case, the court 
was faced with F.C.C. regulation of cable television under the Com- 
munications Act of 1934. No provision in that Act authorized such 
regulation. The court cited Supreme Court preedent sanctioning the 
regulation of cable television “but only where the ends to be achieved 
were ‘long established’ in the field of broadcast television or were 
‘congressionally approved’ ” Id ., at 13 (citations omitted). This con- 
cern was of particular importance because of the First Amendment 
implications involved in regulation of the media. In an even more 
recent case, the Eighth Circuit also struck down F.C.C. regulation of 
cable television. Midwest Video Cor/p. v. F.C.C., 571 F2d 1025 (8th 
Cir., 1978). The court expressed grave concern with governmental in- 
trusion in areas affecting the exercise of Constitutional rights: 
•j o 
Though we find it unnecessary to resolve the serious consti- 
tutional issues raised, we do hold that where, as here, poten- 
tial incursions into sensitive constitutional rights are in- 
volved, care fid scrutiny is required in delineating the scope 
of authority Congress intended l the agency to exercise. Id., at 
1052 [Emphasis added.] 
3 American Constitutional Law, by Laurence H. Tribe (Mlneola, New York : 197S) d 
580. 
* Id., at 581—582. 
[Appendix B — 330] 
