Appendix III-B 
Constitutional Constraints 
on Regulation 
Under the checks and balances of our system of 
government, the Constitution, as ultimately inter- 
preted by the Supreme Court, requires certain pro- 
cedural and substantive standards to be met by stat- 
utory or other regulation imposed upon an activity. 
These requirements depend on the nature of the ac- 
tivity involved. In the present case, it will be useful to 
consider first the regulation of basic research and 
then the regulation of technological applications, 
such as the production of pharmaceuticals by using 
genetic engineering methods. 
Research 
With respect to research, the fundamental ques- 
tion is what limitations, if any, may be placed on the 
search for scientific knowledge. The primary appli- 
cable constitutional provision is the first amendment, 
which has been broadly interpreted by the Supreme 
Court to severely limit intrusion by the Government 
on all forms of expression.* ^ ® Another constitutional 
safeguard, known as equal protection, is secondarily 
involved. 
If the Supreme Court were to recognize a right of 
scientific inquiry, its boundaries would not exceed 
those for freedom of expression. “ There is disagree- 
ment among commentators on this issue concerning 
the boundaries of the first amendment,^ and certain- 
ly disagreement on the application of generally ac- 
cepted principles to particular cases. Moreover, 
there have been no judicial decisions dealing with the 
precise issue at hand. However, it is possible to out- 
line general principles derived from judicial deci- 
sions interpreting the first amendment, and indicate 
how they might be applied by the courts to attempts 
to regulate genetic research. 
There are very few limitations on the written or 
spoken word. The prohibitions against obscenity or 
"fighting words”* clearly would be inapplicable here. 
'Harold P. Green, "The Boundaries of Scientific Freedom" Regulation of 
Scientific Inquiry: Societal Concerns With Research, Keith M. VVuIff (ed.) 
(Washington, D.C.: AAAS, 1979), pp. 139-143. 
^Thomas 1. Emerson, "The Constitution and Regulation of Research," Reg- 
ulation of Scientific Inquiry: Societal Concerns With Research, Keith M. VVuIff 
(ed.) (Washington. D.C.: AAAS, 1979), pp. 129-137. 
'John A. Robertson, "The Scientists' Right to Research: A Constitutional 
Analysis," Southern California Law Review 51.1203, September 1978. 
"Green, op. cit., p. 140. 
'Emerson, op. cit., pp. 131-134. 
•"Fighting words" are those provoking violent reaction or imminent 
disorder. 
For many years, the Supreme Court has conceptual- 
ized the right of free expression in terms of a market- 
place of ideas— through the open and full discussion 
of all ideas and related information, the valuable, 
valid, or useful ones will be accepted by society, 
while the ridiculous or even dangerous ones will be 
so demonstrated and discarded. This is a consensual 
process; no person, group, or institution has suffi- 
cient wisdom to prejudge ideas and deny them 
admittance to that intellectual marketplace, even if 
they threaten fundamental cultural values, for such 
values, if worthwhile, will survive. Under this con- 
cept, scientists would certainly have virtually unre- 
strained freedom to think, speak, and write. 
Difficulties arise with actions, such as experimen- 
tation, which may be essential to the implementation 
of freedom of expression. Recent Supreme Uourt 
cases have recognized a limited protected interest of 
the media to gather information as an essential ad- 
junct to freedom of publication. By analogv', it may 
be argued that scientists would also be protected in 
their research, as a necessary adjunct to freedom of 
expression. On the other hand, the information 
gathering cases usually involve access to Govern- 
ment facilities, such as courtrooms or prisons. I hey 
are based on the principle that actions by the (lov- 
ernment should he open to [jublic scrutiny— a con- 
cept not directly ap[)licable to the |)ce.sent issue 
More importantly, the Cx)urt has long recognizeil 
that actions related to expre.ssion can be regulated 
and that regulation may increase u ith the degree ol 
the action's impact on people or the environment 
The Court would probably ap|)ly what has been 
called a structured balancing test:'* i.e,, regul.ilion 
would be deemed valid only when the (lovei iiment 
sustains the burden of |)rov ing: 1) that there are 
'compelling reasons” for the regulation: and 2) that 
the objective cannot be achieved by less diasiic 
means,” i.e., by more narrowly dratted regulations 
having less ini|)act on first amendment rights 
The secvjnd part of the test is fairly straightlor 
ward. Govei nmental restrictions must he kept to ,i 
minimum. F.g., where possible, they should be leg 
ulatory rather than prohibitory, temporarv r.ither 
than permanent, involve the least burden, .ind soon 
rbe difficult |)art of this test lies in determining 
"Ibid., |) 134 
320 
