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8 S. Cal. Interdisc. L. J. 185 (1998-1999)
First Amendment Protection of Experimentation: A Critical Review and Tentative Synthesis/Reconstruction of the Literature

handle is hein.journals/scid8 and id is 191 raw text is: FIRST AMENDMENT PROTECTION OF EXPERIMENTATION: A CRITICAL REVIEW AND TENTATIVE SYNTHESIS/RECONSTRUCTION OF THE LITERATURE Roy G. SPECE, JR.* JENNIFER WEINZIERL** I. ITRODUCTION*** Many authorities have addressed the topic of whether experi- mentation or research' is covered by the First Amendment.2 The * Professor of Law, University of Arizona College of Law; B.A. California State Univer- sity, Long Beach (1972); J.D., University of Southern California Law School (same year). Third-year law student, the University of Arizona College of Law, 1997-98, J.D., 1998. * Thanks to Michael H. Shapiro, Dorothy W. Nelson Professor at the University of Southern California Law School, for comments on an earlier draft of this Article, especially the suggestion of pursuing a possible structural analogy between the relationships of association and political speech, on the one hand, and experimentation and scientific speech, on the other hand. 1. This Article is not intended to discuss exhaustively the definitions of experimentation and research. The terms will be used interchangeably. Moreover, although it only directly addresses certain cloning experiments, it is not intended to be limited in relevance to biomedical research or to basic as opposed to applied research. In 1985, political scientist, Ira H. Car- men, published Cloning and the Constitution (1985). This work is a significant contribution to the political science literature, but it is not strong on legal doctrine. As pointed out in a review- John B. Attanasio, The Genetic Revolution: What Lawyers Don't Know, 63 N.Y.U. L. REv. 662, 686-88 (1988)-Carmen makes an indefensible First Amendment distinction between basic and applied research, arguing that the former is protected by the First Amendment, but the latter is not. Basic and applied research are so intertwined that it is usually futile to make such a distinc- tion. Moreover, although commercial speech is less protected than pure speech, given that a major grounding of First Amendment rights is the marketplace of ideas and its relationship to the production of knowledge for purposes of advancing public policy and human interests, applied research is arguably more important and protected than basic research. Most impor- tantly, perhaps, as Attanasio points out, making the distinction is itself a form of content discrim- ination that the First Amendment is designed to prohibit. See John B. Attanasio, Does the First Amendment Guarantee a Right to Conduct Scientific Experiments?, 14 J.C. & U.L. 435

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