I am curious as to whether there is any precedent in the U.S. regarding the level of scrutiny applied to 14th amendment claims against statutes that hinder a person's ability to engage in scientific research. In particular, whether the courts have deemed the right to engage in science as "inherent in the concept of ordered liberty" or "deeply rooted in our country's history and tradition." It seems plausible to me that a case could be made for this, which would raise the level of scrutiny above rational basis.

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    Are you taking about scientific inquiry or scientific experiments? – bdb484 Oct 22 at 4:33
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    @bdb484 Both I suppose, I would consider an experiment to be an act of inquiry. The inspiration for this question is a Texas law that basically makes it a felony for an average person to own even the most modest of chemistry sets. The compelling governmental interest would be deterring unlawful production of controlled substances, but it is arguably not narrowly tailored. The glassware itself is controlled, not only chemical compounds. It is the only state to do so. – David Reed Oct 22 at 4:44
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    basically makes it a felony for an average person to own even the most modest of chemistry sets. Your link states that it must be registered, so the felony would be by owning unregistered chemistry sets. And certainly any "right to scientific inquiry" is to be subject to reasonable health, safety and environmental regulations (no, no experimental nuclear reactor in your backyard, sorry). Of course, "reasonability" could be challenged at and decided by the courts. – SJuan76 Oct 22 at 9:00
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    @SJuan76 Yes there is a permit process, but for individuals it is more burdensome then companies. So burdensome I would argue hat although there is some process, it is not "due process". You also are required to surrender certain rights regarding search and seizure. It would be difficult to find a person in the know that didn't think it was overkill. Literally the glassware that comes in DIY kits that parents buy for their kids in elementary school would be included. – David Reed Oct 22 at 13:15
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    I think the specifics of that law are a separate question, especially focusing on the narrow tailoring and least-restrictive issue. The problem is that I cannot discern any bright lines saying what laws survive strict scrutiny (put the other way, which ones fail). – user6726 Oct 22 at 15:26
up vote 24 down vote accepted

There is some precedent for claiming a right to free scientific inquiry. For example, the primary holding of Miller v. California, 413 U.S. 15 is that "Speech that is obscene and thus lacking First Amendment protection must be without serious literary, artistic, political, or scientific value" (note the omission of commercial speech). In Meyer v. Nebraska, 262 U.S. 390, the court overturned a law banning teaching children foreign languages, finding that such a law "invades the liberty guaranteed by the Fourteenth Amendment", and observing

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men

In Griswold v. Connecticut, 381 U.S. 479 the court finds that

the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 319 U. S. 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U. S. 183, 344 U. S. 195) -- indeed, the freedom of the entire university community.

In Henley v. Wise, 303 F. Supp. 62, the court found unconstitutional an Indiana law that would have outlawed research done at the Kinsey Institute at IU (that would have been a later consequence of the law, not the instant matter), stating that "This chilling effect on the research, development and exchange of scholarly ideas is repugnant to the First Amendment", and

the state has unconstitutionally intruded itself into two areas of protected activity. The first protected area is the right of scholars to do research and advance the state of man's knowledge. This is the freedom of inquiry referred to in Griswold v. Connecticut

Then in Branzburg v. Hayes, 408 U.S. 665, the court glancingly groups academic research with other forms of First Amendment protected activities:

Freedom of the press is a "fundamental personal right" which "is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.

Article 25 of the California constitution recognizes a specific research right

There is hereby established a right to conduct stem cell research which includes research involving adult stem cells, cord blood stem cells, pluripotent stem cells, and/or progenitor cells.

However, there have also been (failed) attempts at the federal level to prohibit such research.

More generally, one might look into rulings on acts which are preludes to any form of expression, such as buying paper and ink, acquiring a printing press, hiring reporters, and investigations of events by reporters – it is unlikely that the courts would uphold a law that outlaws reporters investigating crimes or political situations because that is not yet "expression". Indeed, "freedom of the press" does not just refer to the act of disseminating ideas and information. But a definitive court ruling has not been made.

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    The omission of commercial speech from Miller is quite deliberate - porn is usually a for-profit industry, so "commercial speech" would be the exception that swallows the rule. – Kevin Oct 22 at 2:10
  • The only significant question would be what level of scrutiny would be applied to restrictions. I don't think courts would find strict scrutiny to apply. – Acccumulation Oct 22 at 21:45

There is no body of constitutional law to that effect.

In part, this is because the non-constitutional tradition of academic freedom is so great.

Once research is done, publication of that research has strong freedom of the press protections under the First Amendment, but there is no real case law suggesting that the scientific inquiry itself is protected.

For example, while research universities usually have tenured professors in order to protect their freedom of scientific inquiry, it is not unconstitutional to have a university or research department of a corporation, where everyone is an employee at will.

Similarly, cases regarding whether stem cell research should be permitted are not argued in a manner that raises constitutional questions. They are argued based upon statutes allowing or forbidding those practices and administrative law considerations.

  • "it is not unconstitutional to have a university or research department of a corporation, where everyone is an employee at will." The comma makes the second part a nonrestrictive clause, which doesn't make sense. Also, since you didn't specify "state university", there is no state action, so it's hard to see why there would be any constitutional question. – Acccumulation Oct 22 at 21:47
  • There is no constitutional requirement that state universities have tenure either. – ohwilleke Oct 22 at 21:49
  • Yes, but there's at least a state action in that case, which would make a claim slightly less absurd. – Acccumulation Oct 22 at 21:55
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    I am not convinced that the government couldn't pass a law prohibiting people from doing, for example, research regarding the strong nuclear force, as a matter of constitutional law. – ohwilleke Oct 22 at 22:09

While to my knowledge the question has never been put before the Supreme Court, if one cannot find First Amendment protections sufficient to cover pursuit of knowledge, then one could conceivably argue that the Ninth Amendment (Unenumerated Rights) could shelter such a right. Keep in mind that the Ninth Amendment is rarely used, and is more a check on the government against declaring a right too something does not exist because it is not in the constitution. Essentially, it's the founders saying, "Look, there are more rights than the ones we wrote here. We're too lazy to list them, but the government still cannot infringe upon them." Generally, the Constitution favors negative rights to positive rights, so keep that in mind.

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