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The source of this article is New York Times: http://tinyurl.com/6kmj9 IDEA LAB Free to Clone By BRIAN ALEXANDER Published: September 26, 2004 This election year, the debate over cloning technology has become a circus -- and hardly anybody has noticed the gorilla hiding in the tent. Even while President Bush has endorsed throwing scientists in jail to stop ''reckless experiments'' (and has tried to muscle the U.N. into adopting a ban on all forms of cloning, even for research), it's just possible the First Amendment will protect researchers who want to perform cloning research. Dr. Leon Kass, the chairman of the President's Council on Bioethics and a cloning foe, would like to keep that a secret. ''I don't want to encourage such thinking,'' he said during the council's July 24, 2003, session. But the notion that the First Amendment creates a ''right to research'' has been around for a long time, and Kass knows it. In 1977, four eminent legal scholars -- Thomas Emerson, Jerome Barron, Walter Berns and Harold P. Green -- were asked to testify before the House Subcommittee on Science, Technology and Space. At the time, there was alarm in the country over recombinant DNA, or gene splicing. Some people feared clones, designer babies, a plague of superbacteria. The committee wanted to know if the federal government should, or could, restrict the science. ''Certainly the overwhelming tenor of the testimony was in favor of protecting it,'' Barron, who now teaches at George Washington University, recalls. ''I did say scientific research comes within the umbrella of the First Amendment, and I still feel that way.'' Berns, a conservative political scientist who is now at the American Enterprise Institute, was forced to agree. He didn't like this conclusion, because he feared the consequences of tinkering with nature, but even after consulting with Kass before his testimony, he told Congress that ''the First Amendment protected this kind of research.'' Today, he believes it protects cloning experiments as well. Law-review articles written at the time supported Berns, and so would a report issued by Congress's Office of Technology Assessment (O.T.A.). But the courts never got the chance to face the right-to-research issue squarely. An oversight body called the Recombinant DNA Advisory Committee, formed by the National Institutes of Health, essentially allowed science to police itself. So the discussion was submerged. Until now. The right to research, says Cass Sunstein, the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago, ''is a frontier issue and interesting and not yet resolved.'' He argues that ''this is not an outlandish constitutional claim.'' Why legal scholars would defend the right to research is hardly mysterious. The founding fathers passionately defended scientific and academic freedom, and the Supreme Court has traditionally had a high regard for it. In Griswold v. Connecticut, for example, the decision that struck down state prohibitions on the sale of contraceptives, the court stated that the First Amendment protected ''freedom of inquiry.'' But why would the right to read, write and speak as you please extend to the right to experiment in the lab? Arguments in favor of applying First Amendment scrutiny to antiresearch laws can be complex, but the metaphors lawyers have used are not. One, proposed in separate articles by John Robertson of the University of Texas and James Ferguson, who teaches at Northwestern, compares scientists to reporters. As with journalism, actions that are not strictly speech (research) are so necessary to speech (publishing) that to ban them is to ban the speech. R. Alta Charo, legal scholar and bioethicist at the University of Wisconsin, says that some experiments are constitutionally protected ''expressive conduct'' in their own right. ''If the questions you ask and the science you do really challenges or explores cultural or religious or political norms . . . that in itself is an act of rebellion, and this is exactly the sort of thing that fits comfortably in the spirit of the First Amendment.'' Neoconservatives like Kass and the bioethics council members Charles Krauthammer and Francis Fukuyama have emphasized the need to maintain a fixed conception of human nature. But the O.T.A. directly addressed this in a 1981 report. ''Even if the rationale . . . were expanded to include situations where knowledge threatens fundamental cultural values about the nature of man, control of research for such a reason probably would not be constitutionally permissible.'' The government can restrict speech if it can prove a ''compelling interest,'' like public safety or national security. But courts have set that bar very high. Unlike, say, an experiment that releases smallpox into the wind to study how it spreads, which could be banned, embryo research presents no readily apparent danger to public health or security. And if that's the case, scientists who wish to create stem cells by cloning might have a new source of succor: the U.S. Constitution. Brian Alexander is the author of ''Rapture: A Raucous Tour of Cloning, Transhumanism and the New Era of Immortality.'' The paperback edition will be published next month. ---------------------------------------------------------------------- To sign-off Parkinsn send a message to: mailto:[log in to unmask] In the body of the message put: signoff parkinsn