THE KNOWLEDGE PROJECT
While censorship in the fields of art and politics has traditionally garnered the preponderance of public attention, the last few years has brought increased scrutiny of First Amendment concerns in the area of scientific research. A scientist's right to communicate and disseminate his or her research findings, however, is a form of speech that is no less privy to the protections of the First Amendment than any other type of expression.
The impulse to stifle scientific speech is not, of course, a recent development. Government and religious officials have often sought to quash scientific findings that threaten their political message or value system. The censure (and imprisonment) of Galileo by the Catholic Church during the Inquisition for his theory that the sun, not the earth, was the center of the universe and, later, Stalin's brutal repression of scientific inquiry in the totalitarian Soviet Union, are but two examples of the long history of suppression of scientific thought. Even a democracy such as ours has experienced tension between the sometime competing aims of the scientific community and our political leaders, as evidenced, for example, by Nixon's frayed relationship with his science advisors and Reagan's bitter reaction to the scientific community's skeptical evaluation of his Strategic Defense Initiative.
Recently, however, the federal government, motivated by a desire to sustain a specific political agenda, has suppressed and/or distorted scientific reports to a level not previously seen in this country. This incursion on the scientific community has impinged on a wide range of topics, including the environment, climate change, contraception and abstinence education, stem cell research, missile defense, energy sources and evolution.
Censorship of these areas of research raise serious First Amendment concerns and represent a general assault on the scientific process. Further, they represent an erosion of our constitutional rights to freedom of speech, inquiry and exchange of ideas by creating a "chilling effect" for scientists who now fear repercussions for producing data or advocating positions that are inconsistent with the current political agenda. This situation is, of course, untenable. The benefits to society of robust and unencumbered scientific research and debate are incalculable, especially considering that government-sponsored research is often the primary means to developing sound public policy.
List of Means for Restricting Scientific Information
I would like to begin by reviewing some of the various ways scientific information has been censored and distorted. As you will see, they range from blatant violations of the First Amendment, such as preventing scientists from speaking to the public or the media or firing individuals who will not comply, to situations that violate the spirit of the First Amendment and the values of free speech, such as appointment of ideologues to positions of authority in scientific agencies and cutting off funding for controversial research topics.
One of the most obvious violations of the First Amendment is the restrictions placed on scientists' ability to speak to the media and the public about their research. This situation became glaringly obvious this year when James Hansen, Director of the Goddard Institute for Space Studies, went public with his accounts of intimidation and suppression by officials within the agency. Hansen, often referred to as the leading scholar on climate change, has stated that officials at NASA ordered public affairs staff to review his coming lectures, papers, postings on the Goddard website and requests from journalists, that he was warned that there would be "dire consequences" if he continued to make statements that global warming was escalating, that a public affairs officer rejected a request by NPR to interview him because it was too liberal and told him that it was his job to make the President look good.
Because of Hansen's prominence in his field, when he went public with his struggle with the agency, he received a lot of press. Actually, probably more than he wanted. Most scientists eschew the press and prefer a more private existence. And they definitely do not look to make waves. Hence, the Hansen experience was even more shocking than had it happened at a non-scientific agency.
But Hansen was not alone in his experience. Scientists at the National Oceanic and Atmospheric Administration (NOAA) used to routinely take calls from reporters but now can do so only if the interview is pre-approved and if a public affairs officers is present or on the phone. NOAA has been in the news lately because of the important question of whether weather patterns, specifically hurricanes, are linked to global warming. As the level of interest in this question rose dramatically in the wake of Katrina, so did the move to squelch the scientists' ability to speak reporters.
Other examples include scientists at the Dept. of Health and Human Services who sought to address their peers at various conferences but were instructed on what they could speak about. William Steiger, an assistant to the HHS Secretary, reportedly told government scientists that if they wanted to act as consultants in meetings of the World Health Organization they would first have to agree to advocate U.S. policy. In a similar incident, U.S. Fish and Wildlife Service scientists were ordered to downplay risks to endangered species.
The extent of these types of incidents is illustrated by a survey conducted recently by the Union of Concerned Scientists. The survey was sent to nearly 6,000 scientists at the FDA and. according to the 997 respondents, one fifth claimed to have been asked to change or exclude scientific conclusions for "non-scientific reasons" while 60% witnessed political appointees inappropriately involving themselves.
Apart from stifling the ability of individual scientists to speak out, science has been censored by simply removing those scientists whose research proves untenable or inconsistent with the results desired by policiticans or pulling funding on those that are collecting data that turns out to be problematic. For example, scientists at The Fish Passage Center, an agency that analyzes the impact of dams on salmon for state fish and wildlife agencies, saw their funding pulled after environmental groups successfully used data compiled by it to enact environmental reforms. The Center was accused by hostile legislators of producing "false science" and "data cloaked in advocacy. Later, the dejected manager of the Center stated, "What we do is just math. Math can't hurt you."
Also, Dr. Elizabeth Blackburn, a molecular biologist was asked to leave the President's Council on Bioethics after expressing concern over the administration's misleading information on stem cell research. Similarly, in an apparent attempt to block a pending report that would recommend changes in the flow of the Missouri River to comply with the Endangered Species Act, the administration removed scientists from a study years in the making and replaced them with a more industry-friendly panel. These are, of course, just a few examples.
And, an incident near and dear to all of your hearts, libraries have been downsized or closed to the public. The Environmental Protection Agency has long maintained regional libraries that store troves of technical reports and scientific data that are relied on not only by scientists to enforce the nation's environmental laws but also the general public to initiate court challenges to proposed construction projects. As one EPA toxicologist with 22 years at the agency put it "it's as if your local fire department was getting rid of their fire trucks."
Rejecting Scientific Conclusions
Another disturbing trend has been the rejection of scientific opinions and conclusions by politicians when these reports have been deemed too costly or socially untenable.
For example, the FDA recently broke from protocol when it rejected its own staff findings and an advisory panel that had approved over-the-counter sales of the morning-after pill, or Plan B as it is commonly known. The General Accounting Office recently released a report finding that FDA officials informed staff that the application to make Plan B available over-the-counter had been rejected even before the scientific review was complete. Forty studies and 15,000 pages of documents, reviewed and approved by FDA staff, made clear the safety and effectiveness of Plan B. FDA officials overruled the recommendations and findings of their staff because of the concern that easy availability of Plan B would make younger teens more promiscuous. Studies have found that over-the-counter availability of Plan B does not increase the likelihood that a teen will engage in sexual intercourse.
And, in déjà vu, the FDA once again opted to ignore the leading scientific data when it utterly ignored a 1999 review by the Institute of Medicine that found that marijuana was "moderately well suited" for particular medical conditions. The FDA's official position was that "no scientific studies" support the use of medical marijuana. Disturbingly, not only is the FDA refusing to acknowledge the research findings of the Institute, a branch of the highly-esteemed National Academy of Sciences, but it has also blocked other scientists from researching the medical benefits of marijuana, prompting one scientist to declare that "the reason there's no good evidence is that they don't want an honest trial." The hypocrisy could not be clearer: The FDA finds no studies support medical use of marijuana because they have been actively suppressing any attempt to study the issue.
Removing Sections of Reports/Revising
Similar to outright rejection of scientific data is the spinning of research so that it fits the Administration's policy goals and can better mislead the public. Indeed, there are many reports of research findings that have been delayed, altered or deleted when they fail to support government policy.
One of the more notorious is the case of Rick Piltz, a former Senior Associate with the U.S. Climate Change Science Policy Office who accused Philip Cooney, chief of staff of the White House Council on Environmental Quality (CEQ) and a lawyer not a scientist, of changing several 2002 and 2003 reports on climate change, including one on ice and snowpack melting because Cooney believed it strayed from research strategy into speculation. The distortions of Piltz's report, which was later featured on 60 minutes, were shocking in their breadth. After the accusations came to light Clooney resigned 10 days later and accepted job at Exxon.
Similarly, the National Security Council had an entire chapter on Iraq's economy deleted from the "Economic Report of the President" because it interfered with positive tone of report. Finally, in another well-publicized incident, a fact sheet by the National Cancer Institute was changed to imply that there is a link between abortion and breast cancer. Representative Henry Waxman intervened and it was changed back after the NCI held a conference which declared that it was very well-established that no such link existed.
Delay has also been a problem. EPA Inspector General Nikki Tinsley charged that senior management at the White House sat on an EPA report on mercury and instructed staff to arrive at a predetermined conclusion favoring industry. Nine months after it was drafted, frustrated EPA officials leaked the report to Wall Street Journal.
Forcing A Notion of Balance On Otherwise Resolved Scientific Issues
Another vexing development has been the attempt to create balance of viewpoints on issues that do not really pose a debate. Evolution was obviously one of the most egregious examples of this charade. Luckily, a federal court decision seems to have squarely ruled out most challenges to teaching evolution in school, or, rather, the co-teaching of intelligent design as a "competing theory." Obviously, there is no competition there.
In yet another striking example, politicians forced a program change at a recently held National STD Prevention Conference sponsored by CDC. The panel entitled: "Are Abstinence-Only-Until Marriage Programs a Threat to Public Health?" was changed to "Public Health Strategies of Abstinence Programs for Youth." The speakers were also changed to remove a critic of abstinence in favor of two proponents, one of whom states online that his goal is to "serve the Lord through medical missions and the preaching of the Gospel." The program change came as a result of politicians who are opponents of contraception and comprehensive sex education and who claim that the program lacked "balance." Notably, the panelists who were added had not been peer-reviewed, an integral requirement for speaking at these conferences, nor published in any reputable journal. Frankly, how is that balance?
Finally, there are ideological appointments of biased individuals to positions of authority at various agencies. While these appointments are not in and of themselves acts of censorship, they are often the root cause of later acts of suppression. Some examples of these appointments include:
President Bush's nomination of Dr. David Hager to the Reproductive Health Advisory Committee. Dr. Hager was best known for authoring book on Biblical health approach for female issues. He was nominated to be the chair of the committee, but public outcry reduced him to being simply a member.
The problem had gotten so bad that agencies are now retreating from the long standing protocol of acting on the recommendations of their own experts. For example, HHS Secretary Tommy Thompson rejected a nominee to the Committee on Childhood Lead Poisoning offered by the CDC. It was the first time an HHS Secretary refused a nominee by the CDC. Instead, HHS fired the leading lead expert, Dr. Michael Weitzman, and installed appointees with ties to the lead industry.
And it happens at all levels. For example, the case of 24-year-old NASA spokesman George Deutsch. In his role as spokesman, Mr. Deutsch prevented reporters from interviewing James Hansen, as I mentioned earlier the leading climate scientist at NASA Deutsch told colleagues that he was doing so because his job was to "make the president look good." Deutsch also instructed another NASA scientist to add the word "theory" after every written mention of the Big Bang, on the grounds that the accepted scientific explanation of the origins of the universe "is an opinion" and that NASA should not discount the possibility of "intelligent design by a creator." Mr. Deutsch later resigned after it was discovered that he had lied on his resume.
Prior Restraint Law and the Media Policies
As you can see, there are a myriad ways in which scientific expression has been suppressed and information censored. I'd like now to address in greater detail one of the methods of censorship I just discussed: the free speech rights of the scientists themselves.
Among the chief evils the First Amendment prohibits is government prior restraint of speech. A prior restraint occurs when the government acts to restrict speech before publication. Any scheme whereby a regulation or statute requires the submission of a proposed communication for review operates as a prior restraint.
It would seem clear, then, that policies requiring prior approval before a scientist can speak to the public about his or her research constitute a prior restraint. There is, however, another factor to consider. Because these scientists are employed by the government, and their research is funded by federal money, the analysis must account for well-established law that upholds limits on government employees' speech rights.
Because blatant censorship of government scientists was rare, until recently, it is not surprising that the Supreme Court has not addressed the issue squarely. It has however, issued a series of rulings addressing restraints on the speech of government employees engaged in a variety of other kinds of activities, and on speech-related consequences of restrictions on the use of federal funds. A recent decision by the Court has generated a high level of concern over the protection of free speech rights of academics and scientists. The case is called Garcetti v. Ceballos. Briefly, Ceballos was a deputy district attorney who complained internally about his concerns that a police officer had perjured himself to obtain a search warrant. He was subsequently disciplined by the DA's office. At issue was the difficulty of balancing the rights of government employees to speak about matters of public concern (and what constitutes "matters of public concern") with the need for employers to maintain authority and promote efficiency.
In the opinion, the Court opted to focus to the definition of what is and is not within the employee's job description, and whether an employee who speaks on a matter of public concern, but does so in the course of his employment, loses the First Amendment protection he would normally receive if he spoke publicly.
The ramifications of the opinion on the academic and scientific community are obviously grounded in whether that logic would extend to these communities. Is an academic or scientist who receives federal funding expected to espouse a certain party line or does the concept of academic freedom trump such an idea? It is most likely the latter although the opinion did not specifically exclude these professions or this hypothetical from its purview. And, importantly, the Court acknowledged that employees who comment on matters of public concern outside the course of performing their official duties, even if the subject relates to their official duties, retain First Amendment protections.
Again, the decision leaves many important questions unanswered, but does not foreclose the possibility that more expansive free speech rights will apply to government scientists, given the unique nature of their work and the public's interest in maintaining the integrity of the scientific process, which depends on the full and free exchange of ideas. Certainly, strong policy considerations militate in favor of such a construction.
And, legislation has been proposed in Congress to codify some of the free speech guarantees that Ceballos threatens, especially the protections offered to whistleblowers.
GENERAL RIGHT TO KNOW
Of course, the flip side to the free speech rights of the scientists is the First Amendment rights of the public, namely, their right to access this information, or, put another way, their right to know. The right to know doctrine has not yet been recognized explicitly by the Supreme Court. It is often raised in conjunction with arguments by journalists and other investigators to bolster their case to uncover and reveal government held information, but it has not been held as a stand alone right by a private citizen seeking information, outside of the FOIA context. The difference can be seen in the Fish Passage Center incident I mentioned earlier. Once the funding is cut for that Center, can groups who relied on the data to sue under other statutes, such as endangered species act or clean water act, claim that they have a First Amendment right to that information under the right to know doctrine? Or does that mean the government is responsible for collecting information that any private citizen would want or need in order to pursue a legal claim? It is a very difficult question and one that courts have not been eager to address.
Finally, I'd like to end on the idea that regardless of the current state of the law today, our founding fathers surely envisioned a nation that fiercely protected the integrity of the scientific method and it's contributions to a better society. Enlightenment era values embraced by the founding generation support the notion that the framers of the Constitution intended constitutional protection for scientific speech and investigation. Jefferson saw science as the paradigm of truth-seeking processes, and described liberty as the "great parent of science." Benjamin Franklin is well-known for his belief in scientific inquiry, rational decision-making, and the necessity for an educated electorate.
The open-ended language of the First Amendment, coupled with the recognition of the importance of scientific exchange reflected in the copyright and patent provisions, and the private writings of some of the most influential thinkers of the Revolutionary period and drafters of the Constitution, suggests that there is a sound argument for the proposition that protection of unfettered scientific speech and inquiry was of the highest priority for the framers. What they could perhaps not foresee is the extent to which the government has come to dominate such discourse, through funding, regulations, and otherwise. However, this development provides no basis to sanction government interference or suppression that would clearly violate their original intent.