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Law Professor: Genetic Engineering Is (Probably) Protected By the First Amendment
Jason Koebler writes: The dawn of cheap genome editing techniques such as CRISPR understandably have people across the political spectrum worried about what a future of designer babies, more pathogenic viruses, deextincted species, clones, and glow-in-the-dark sushi might look like. But does putting limits on genetic engineering violate scientists' constitutional rights? The First Amendment has been interpreted by the Supreme Court to encompass not just the freedom of speech, but also the freedom of expression and expressive conduct, which likely includes acts of science, according to Alta Charo, a bioethicist and law professor at University of Wisconsin Law School, who says that science is inherently political.
just wanted to emphasize by repetition.
By that interpretation blowing up the moon is protected speech.
... of my US laboratory's work to create a race of mutant tentacle monsters!
"This administration is so incompetent that they cover their tracks with bigger tracks." - Seth Meyers
All things of note are inherently political. If they involve more than one person with their own ideas and opinions, there's going to be politics. The world is a lumpy place.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Or does this one go against DMCA?
Ohhh, my head hurts.
Know what? Let's get rid of "Law Professors" instead.
I think some types of genetic engineering such as, say, creating a strain of HIV that's as easily transmissible as the common cold, would be the scientific equivalent of shouting "Fire!" in a crowded room and are thus not protected forms of expression.
... and watch the US Government restricts it anyway.
Hands up, who thinks the US Government cares what your Constitution protects or not?
As long as you are creating self-replicating things, or things that can mix genes with self replicating things, then you have a potentially disaster waiting to happen. We make software and it has bugs, and sometimes we make software that can self-replicate (virusses) and we get Stuxnet.
Bugs happen, and they do/will happen in genetic engineering. Since your dealing with life, self replicating systems, then every bug can become a Stuxnet, spread and cause massive failures.
Genetic Engineering is biological warfare without the intent to cause a war. But then again, no programmer intends to write bugs in their code! It happens anyway and code is far simpler than DNA.
Suck it up and take the regulation, its for your own good scientists.
> recombinant-DNA technology,' the first piece of basic research to expose the public-at-large to an immediate threat of
harm.
The invention of fire, nuclear power, and basic reasearch into poisons don't count? And later on:
> "isotope separation" could disclose a cheap and abundant energy source for nuclear weapons
It's not "cheap". The expense of isotopic separation is one of the factors that limit nuclear proliferation.
The ideas in the legal analysis are interesting and lay out some of the free speech grounds for protecting scientific research from ban or regulation, such as occurs for encryption or fetal research. But the occasional bit of nonsense such as those above call the reasoning into question.
We might want another amendment. The first amendment is,pretty plainly written, and it protects four things:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That's what the first amendment protects. Freedom of speech, the press, right to assemble, and petition. That list is followed by a period, which means "the end". Notice the list of four things does not say "the privilege to do anything and everything that is politically controversial ". In fact, the word political isn't there at all. If you think other things SHOULD be protected, perhaps you want to propose another amendment. Personally, I think it's time for another amendment or two.
It's quite strange that he said "political " as though that ADDS protection. In fact, political messages, like pornography, are one of the very few classes that the Supreme Court has ruled do NOT have the normal level of protection. Campaign finance law exists and legally limits who much you can spend spreading political messages. There is no such limit on jokes, instructional materials, or any other type of speech. As another example, you can't do your political speech near a polling place. Political messages have been ruled to have LESS protection, not more.
Yes, I am aware that some supreme court justices have ignored the Constitutionally defined amendment process and claimed to change the Constitution by simply writing down their thoughts. The Constitution gives them no such power. The process for changing the Constitution is written in the document itself, and it does not say "this document shall by be changed by a justice writing down their opinions."
Not Pieceably assemble...
So would building a bomb in a basement be an expression of free speech? After all it could be fundamentally saying "I think XXX should be blown up"! The Muslims will be pleased.
I admit that I'm not an advanced First Amendmentologist; but haven't speech acts (whether for highflown theoretical reasons or just in practice) tended to enjoy less protection as they get closer to being things that are criminalized for other reasons; that just happen to be done by means of speech in this particular instance?
If, say, I cash a bad check, that check is as much a speech act as the declaration of independence is(yes, both are actually writings; but bear with me); but I generally don't get to argue that I was just following the noble tradition of Thomas Paine and authoring an inflammatory but vital document. Nobody denies that I used written words to do it; but the act was just fraud.
Same goes for asking a hitman to whack somebody for me, doing a bit of extortion, or any other crime that incidentally requires some interpersonal communication; but is largely not about that.
In the case of genetics, the whole point of genes(when functioning within an organism, or packaged for injection as they are in a virus) is to be converted from 'speech' to some sort of biological effect.
Personally, I'm relatively unsympathetic to much of the opposition to 'designer babies' and the terrifying 'frankenfood' and whatnot; but it seems like a pretty easy argument that, for any genetic engineering actually intended to have results(you can synthesize gene sequences and do X-ray crystallography to your heart's content, as far as I'm concerned) the overwhelmingly obvious parallel is those speech acts that are more or less wholly just the convenient way to achieve a specific action(whether legal or not), not the political positions, expressions of opinion, commentary, satire, etc. that are generally protected.
Making a genetic change is essentially giving an order for some sort of protein synthesis(biologists, please don't kill me, horrible simplification there). It's far more convenient than synthesizing the proteins yourself and painstakingly injecting them into every cell in an organism, continually, which is why you do it that way; but it's a 'speech' act employed just because it's the best way to get certain direct consequences, not a mere expression.
I don't see why, say, genetically engineering a baby to express some protein would be more (or less) legal than giving verbal instructions to my assistant to inject a baby with the same protein; or why producing a smallpox stockpile by 'speaking' the appropriate DNA sequence and packaging it up would be legal; but achieving the same end by locating and de-icing a smallpox patient who froze into the permafrost(since that wouldn't be a speech act) would be illegal.
I wish to emphasize that none of this means that I'm against genetic engineering, including some of the stuff usually deemed 'controversial'; I just find the idea that you'd be able to do more things legally because DNA is speech, man! seems severely weak, at best. Some of it will be legal because there is no cogent reason for banning it, some of it will be banned for one reason or another; but I'm not seeing the 'speech' argument here.
So by that measure, hacking is protected speech too.
I'm sorry, but just like yelling "FIRE" in a theater is forbidden, so too would be crafting a genetically modified bacteria or virus for malice.
Life is not for the lazy.
Dr. Fred Edison, is that you?
P.S. It doesn't work out too well...
UNIX? They're not even circumcised! Savages!
I could claim burying an axe in someone's head as performance art. It is requires creativity and technical skill, and creates an emotional reaction in the audience. But I don't think I could claim that this is protected by the First amendment.
Clause 3 (to peacably assemble) and clause 4 (to petition the government) are quite clearly political. Restrictions on gatherings are common and vital, parts of a state protecting itself from its own citizens and from any groups that might confront or overwhelm those of the state itself. Take a good look at the "Arab Spring" gatherings, or of the British restrictions on gatherings before and during the American Revolution, or even look at the national conventions for presidential candidates for examples.
> The process for changing the Constitution is written in the document itself, and it does not say "this document shall by be changed by a justice writing down their opinions."
No, it leaves interpretation of the Constitution in the hands of the Supreme Court. Application of general principles to specific cases always relies on the official on the spot, and the power of the Supreme Court to make rulings is in Article III, Secition 1 and 2. The "writing down of the opinions" explains the reasoning of the judges, and this establishment of judicial precedent for following judges long predates the US Constitution. Discarding it would lead to far, far more power in the hands of individual judges to re-interpret every case as they individually saw fit: this can be _extremely_ dangerous.
Apparently this "law professor" has CJD or perhaps a brain tumor; there's just a bit of a difference between publishing modifications to genetic sequences (i.e. exercising one's write to free speech) and actually implementing those modifications in the physical world.
The logic really isn't that hard to follow except, perhaps, for certain law professors:..
Are you kidding? It'll work out great! Think of the cuddling potential! Okay, okay, sometimes it might be a bit awkward...
"This administration is so incompetent that they cover their tracks with bigger tracks." - Seth Meyers
Not quite - doing the research required to know how to blow up the moon and then telling everyone how to blow it up is apparently what this guy thinks is protected. The tortuous logic is that activities required for communication are protected and, before you can communicate scientific knowledge you have to have found that knowledge and so therefore scientific research is protected.
This is clearly nonsense. You can communicate scientific ideas freely without knowing that they are right. Indeed this is what a lot of scientific discussion is - exchanging ideas about how things might work and then designing an experiment to test the hypothesis. As with everything else the speech should be protected, acting on that speech, i.e. research, should not.
It has been said that genetic engineering is more dangerous than nukes. If the knowledge of how to engineer a virus get discovered, it will be possible to make it in a small lab that does not show up on satellites. Nuclear fuel processing facilities are BIG and expel gamma rays, so they are hard to hide and VERY expensive to build. If some rogue nation starts to build a nuke, that plant can be found and bombed.
If Harvard publishes a paper on how to make a virus that targets pale skin with 100% mortality, the lab will be open in week.
If you want to ban 3d printed guns, you may also fear unfettered genetic research.
Monsanto has won court cases where pollen from a GMO field blew into the neighbor's heirloom crops. They sued the heirloom farmer for using the pollen that blew into his farm. Monsanto (and others) want to change the genes in corn and wheat to patent it, but still label it "corn" and "wheat" to consumers.
Some want glow in the dark sushi, but what is the long term health of eating it? How long should those trials be?
No, actually it doesn't. That's a power the Supremes took on themselves back in the nineteenth century. Because someone had to do it, and the Constitution didn't actually specify who that someone was.
Note that (from what I've read), the assumption was that a Constitutional Convention would fix little interpretation issues that the normal Amendment process couldn't deal with.
Note also that letting the Supremes do it keeps the Constitution to manageable lengths - I'd hate to have a 2000 page Constitution.
"I do not agree with what you say, but I will defend to the death your right to say it"
Genetic engineering is about expressing things, not ideas.
The first amendment gives us freedom of speech which gives the right to express ideas.
Including things annoying to others like politicics, religion, science, and just plain nutty stuff.
It does not include things dangerous to others like fire in a crowded theater.
It also give the right to assemble, but that is a group of folks in a meeting, not assembling molecules.
Genetic engineering does use the express word as in expressing genes.
But that is not anything like expressing ideas through speech.
I don't see how it gives the right to make things, especially things that are potentially dangerous to others.
What am I missing that this scientist has.
Aside from wishful thinking.
I think they are more concerned with the 'rights' of the company to make money. That seems to be how it usually works. As we know, first amendment rights, esp. freedom to practice religion went out the window with the recent Supreme Court decision.
Science FUNDING is political. Scientists are driven by MONEY.
Whenever someone (usually a creationist) tries to tell me about conspiracies in science, I have to laugh. Whether you're working in industry, a university, a national lab, or in your own garage, most scientific endeavors cost money. And when it comes to funding for science, the money is painfully limited. The rejection rate of NSF proposals is somewhere between 80% and 90%. This means there's fierce competition, and scientsts are as competive as any other group. The instant someone publishes something questionable, others pounce on it and try to verify or discredit it. Discrediting another scientist's work is a great way to eliminate them from the competition pool.
Now, let's say a scientist had some solid, objective evidence that there was some kind of unexplainable gap in evolutionary history (because obviously there are mountains of explanable non-gaps). I think they would have a hard time getting that published, because nobody would believe it.
Accidental conspiracies do happen, because scientists can be really stupid. A friend of mine got a paper rejected once because he pointed out the Dijkstra's shortest path algorithm would be faster than Bellman-Ford for any sizable input set. Because, as any CS undergrad knows, an O(n log n) algorithm will be much faster than an O(n squared) algorithm, even if the constant for the n log n algorithm is relatively huge. However, this one reviewer pointed to earlier work by some idiot who said that Bellman-Ford was faster, and the other reviewers swallowed it without thinking. Of course, he got it published somewhere else, but the point is that science does get wrongfully suppressed sometimes, and it can become wide-spread when a large body of scientists believe something that is incorrect. But people aren't getting together in lodges and making plans to fool the populace into believing something they know is wrong. Many scientists don't even think about that sort of thing, because they lack social inclinations.
Circumventin the DMCA to hack my harvester doesn't infringe in patents. Building & selling harvesters (or toilet seats) which use a patented principle from other's harvester would do.
Don't confuse things. Intellectual Poverty is already too baroque as it is.
...as much as writing computer viruses, exploit code (including PoCs) and such is protected speech too. If there is harm done to others it rests solely with the use, and not with the writing thereof.
As an aside: the use of written and spoken political nonsense has led entire nations to exterminate over 200 million people in the last century. Your brain is the weakest link, protect it with critical thinking and assorted rational intellectual hygiene.
My liberty to swing my fist ends at the tip of your nose.
My right to free speech ends when I write on your skin with a scalpel.
My right to string DNA sequences together ends when I implement them in a legally-protected human or animal.
Finally! A loss for the ludites!
And most of the time, it works. There will always be bad actors, but the majority of scientists operate within the accepted ethical parameters of their field. In a similar vein, human cloning is generally accepted to be unethical.
Damn_registrars has no butt-hole. Damn_registrars has no use for a butt-hole.
Article III says that the courts shall rule as to the facts of a case (did he do the crime or not?) and which law is applicable (is it theft or embezzlement?). No part of the Constitution anywhere says that the courts may change any law, much less change the Constitution itself. The two process for changing the Constitution is in article V, which lists the two ways that it may be done.
In the wheat cases, the SC did essentially claim that they had the power to rewrite the interstate commerce clause, by removing both words "interstate" and "commerce". They have been granted no such power, however. Their power is to decide whether or not a given item is in interstate commerce or not, a decision to regulate an item which is neither in commerce nor moving interstate is illegitimate. The early court itself ruled that it did not have the power to override the plain text of the Constitution: âoeAll laws which are repugnant to the Constitution are null and void.â (Marbury vs.Madison, 1803.)
The court may have been informed by the words of Thomas Jefferson:
Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it cannot have been made in pursuance of its powers. The latter will be nugatory and void.â (Thomas Jefferson)
On this basis, as the Madison court agreed, any decision of the court which purports to change the meaning of the Constitution is thusly null and void, without force of law.
> The First Amendment has been interpreted by the Supreme Court to encompass not just the freedom of speech, but also the freedom of expression and expressive conduct
Bullshit. As the Nurenberg Nazi Doctor Trials (and resulting hangings) have shown in 1946, the United Nations trumps national laws. (Even though it was fine to gas, burn and live dissect jews, gypsies, gays, etc. according to the Third Reich laws enacted by Hitler's rubberstamp national assembly.)
Good luck trying to defend your liberty by 1st amendment defence after creating e.g. genetically engineered babies with artifically activated chromosomes for spontaneous human combustion or whatever. They will hang you high to dry so crows won't go home hungry.
By the way, the same kind of B.S. reasoning quoted about, has already been tried by the USA to get out of League of Nations anti poison-gas treaties (by claiming that the right of americans to unfettered free enterprise is expressly recognized in the Constitution and surely amassed warfare is a very significant economic activity, at least for the arms makers).
because while you can say what you want you are also liable for whatever you say.
Re:Great to know that nobody can stand in the way of my US laboratory's work to create a race of mutant tentacle monsters!
Oh no! Better legislate NOW to nip it in the bud!
http://oglaf.com/ladder1/
http://oglaf.com/ladder1/2/
Animals don't have constitutional rights, don't be stupid.
I'm not gonna click that last link, I'm just gonna assume NSFW.
I like to practice my expression by shooting bullets at people in artistic patterns. Is that protected "speech" or is there some mechanism whereby speech can be regulated when its exercise conflicts with the rights of others?
People seem to forget that Marbury v. Madison is what established Judicial Review. Not the Constitution explicitly. I don't necessarily disagree with the concept of Judicial Review myself. But I do sometimes disagree with how it's been implemented as time goes on.
It's weird the way you want to list four things and so left out the first one.
Didn't anyone RTFAT(itle)P(age) ?
If this position had any serious acceptance in the legal community, you'd think we'd know about it 36 years after publication.
Any lawyer can claim anything. Especially if you pay them. Getting other lawyers (judges in particular) to agree takes a little more work.
https://app.box.com/WitthoftResume Code: https://github.com/cellocgw
I didn't say they had constitutional rights, I said they were legally protected. Try vivisecting your dog in the park and see what happens to you.
Your research keeps interfering with my development of catgirls in school uniforms
And yet, somehow a chunk of those supporting this Libertarian school of thought would still furiously oppose a women from controlling her own body.
That's true, somehow my eyes skipped passed the first one. I did, however, copy and paste the full text of the first amendment, so it was included in my post.
It depends. Where I live, you can't be ordered to take down a political yard sign, but business signage is strictly limited.
Contribute to civilization: ari.aynrand.org/donate
Time-travelers? Precogs? What?
"Man is a political animal"
Aristotle
QED EOT ^D FULL STOP
Each of the three branches is required to act within the limits of the Constitution, and thus each branch in deciding how to act must "interpret" the Constitution. The legislature must interpret the Constitution in order to determine whether the laws it passes are constitutional (a task it has been failing at), and so must the executive in signing off and acting on laws (also failing). The Supreme Court is the last branch to get a shot at a law, so it has the appearance of being the sole arbiter of constitutionality. Note that if the Congress were not being so wimpy, it could pass the same law again with a minor change in wording, and again, and again, and the court's reaction time would leave the law in effect more of the time than not. Congress also has the Constitutional authority to disestablish courts, impeach judges, limit the jurisdiction of courts, and declare a court's decision unconstitutional and therefor null and void.
Contribute to civilization: ari.aynrand.org/donate
> Note that if the Congress were not being so wimpy, it could pass the same law again with a minor change in wording, and again, and again, and the court's reaction time would leave the law in effect more of the time than not.
Oh, they do. When they're wise, they consider the Constitutional concerns brought up by the court and make a "minor change" that addresses that concern.
Other times, the court is so loathe to confront Congress that they rule that the item is a) a tax, and therefore within the power of Congress, AND b) NOT a tax, and therefore doesn't have to originate in the House.
Other times, they rule that the administration's surveillance program is unconstitutional, yet choose not to issue a order that it be stopped. Because maybe someday Congress will fix it such that it's no longer Constitutional.
On the other hand, the president recently announced that he has the power to unilaterally rewrite immigration law BECAUSE CONGRESS CHOSE NOT TO make the changes he wanted. Seriously, that's the administration's justification- Congress didn't do what we wanted, therefore we have the power to write out own laws. The framers never intended the president to be de facto king.
so one of my best friends is a biochem phd whose spouse happens to be a microbiology phd (real life shamy). when that story came out a few yrs back about someone breeding a contagious bird flu in ferrets I asked (half-jokingly) if they were qualified to do that (assuming so). the actual response scared the hell out of me: basically it was that contagious, high-mortality flu isn't what we should be worried about - it's somebody splicing a cancer-causing sequence (from something like hpv) into something like the common cold which would take a couple decades to present as a global cancer epidemic and that it wouldn't be that hard for someone w/the right knowledge & equipment to do...
I agree that free speech should no more apply here than to someone trying to make plutonium in your bathtub (or even your run of the mill meth lab) but fear that such laws in practice will amount to prosecuting someone for not having a concealed carry permit after they've gone postal (well, that x1,000,000,000)...
And my DNA is my body.
Get your His-tag modified viral scripts out of my DNA and my circRNA!
-- Tigger warning: This post may contain tiggers! --
We passed the threshold for an Article V convention (applications from 2/3 of states) about 100 years ago. To date, I think we have applications from 49 states. Congress has refused to acknowledge it.
everything is political - somewhere someone cares enough to bring it up with others; that's politics. everything is also a matter of free speech - every person ought to be totally free to do whatever they like, except in cases where either scarcity require choice or the actual action causes demonstrable material harm to which the harmed person objects.
I suppose your right, "claimed" the power isn't exactly the right word. They've simply declared new amd different wording, without explicitly claiming the power to do so. Perhaps I should have said "asserted" the power or "assumed" the power, rather than "claimed" the power.
You mention the wording of the Constitution can sometimes be ambiguous. Sometimes, it is. Sometimes, the SC asserts that the words "regulate interstate commerce " shall mean "prohibit things which are neither interstate nor commerce ". (Growing your own food, for your own family to eat.) The wheat cases were a direct rewriting of the unambiguous terms of the Constitution, plain and simple.
Not to the degree that you might think.
"This administration is so incompetent that they cover their tracks with bigger tracks." - Seth Meyers
Challenge accepted! Mounting on a castrated smallpox vector now. That ought to teach those antivaxers.