Fear and the First Amendment.

And who can doubt that it will lead to the worst disorders when minds created free by God are compelled to submit slavishly to an outside will? When we are told to deny our senses and subject them to the whim of others? When people devoid of whatsoever competence are made judges over experts and are granted authority to treat them as they please? These are the novelties which are apt to bring about the ruin of commonwealths and the subversion of the state. --Galileo, in the margin of his own copy of Dialogue on the Great World Systems (1) On June 29, 2006, the Vatican announced that it would excommunicate any woman, scientist, or politician who participates in or facilitates embryonic stem cell research. (2) Galileo would not be surprised. After all, he was threatened with excommunication merely for endorsing the Copernican view that earth, and by extension humanity, is not the center of the universe. But at least the Vatican's basis for excommunication this time is its assertion that embryos are the moral equals of women, patients, and babies, and as such may not be killed to benefit others. Similar, purportedly secular calls to ban certain areas of research and to jail the scientists who pursue them are based on little more than fear of social disruption and a debasement of our "humanity," a fear far more akin to the earlier Vatican efforts to stifle research that challenges fundamental cultural, political, and theological beliefs. Although still tentative, recently there has been increased attention to the question of whether the First Amendment, which is commonly understood to protect speech against government censorship, ought to protect basic science research. Beginning in the 1970s with a seminal article by John Robertson, and more recently with additional articles focused on cloning research in particular, the question has been raised: can scientific research be viewed as a form of protected "speech"? (3) The First Amendment does not protect only those words spoken aloud or written on paper. It also protects so-called "expressive conduct," such as the wearing of a piece of clothing that is intended to convey a message. Indeed, expressive conduct is so well protected that it precludes government bans on the burning of the very flag that represents a country whose constitution protects expressive conduct. In analyzing First Amendment protection of free speech, legal scholars have usually asked whether it ought to be protected because the action (research) is a precursor to the speech (publication of results), but such arguments have failed to gain traction. Others have focused on the publication of scientific information, but not on the underlying research itself. A different approach would be to ask whether the action itself--the research--is in itself a form of expressive conduct--conduct that sends a message. Research on the origins of the species, such as that conducted by Darwin, could be viewed as implicitly conveying a message, with that message being a rejection of extant religious and cultural views about the singularity of humans and a substitution of a world view in which humans are part of a continuum of the animal world. Indeed, according to Goethe, Copernicus' work was perceived as having just such an effect: Of all discoveries and opinions, none may have exerted a greater effect on the human spirit than the doctrine of Copernicus. The world had scarcely become known as round and complete in itself when it was asked to waive the tremendous privilege of being the center of the universe. Never, perhaps, was a greater demand made on mankind--for by this admission so many things vanished in mist and smoke! What became of our Eden, our world of innocence, piety and poetry; the testimony of the senses; the conviction of a poetic-religious faith? No wonder his contemporaries did not wish to let all this go and offered every possible resistance to a doctrine which in its converts authorized and demanded a freedom of view and greatness of thought so far unknown, indeed not even dreamed of. …