Gene Patents
A gene patent case now in the Supreme Court is attracting a lot of attention, not only because of its importance to scientific research and health care but also because of its potential free speech implications.
Association for Molecular Pathology v. Myriad Genetics challenges the validity of patents held by Myriad on the BRCA1 and BRCA2 gene, which, in mutated form, are associated with an increased risk of breast and ovarian cancer. According to the brief of scientists, doctors, and patients who brought the case, the patent gives Myriad “control over a body of knowledge and over pure information,” which “is impermissible” under the First Amendment because it denies individuals access to information about their own genetic characteristics and inhibits scientific research.
The Court may not reach the First Amendment issue if it decides that genes, which are “a product of nature,” can’t be patented. Regardless, it’s unlikely that the case will fully resolve all the issues related to gene patents, which pose the same kind of tension with the First Amendment that’s familiar in copyright disputes, regarding the ability to use, share, or build on pre-existing creations and discoveries.
Ward Churchill: In the News—and the Courts—Again
After Ward Churchill, a tenured professor at the University of Colorado, wrote a controversial article about the September 11, 2001 terrorist attacks, Colorado officials demanded that he be fired. University administrators acknowledged that Churchill couldn’t be fired for expressing unpopular views but launched an investigation seeking academic grounds for his dismissal. Churchill was eventually terminated for “academic misconduct.” He countered with a lawsuit alleging that he’d been terminated “in retaliation for his politically controversial but constitutionally protected speech.”
In a case that raises troubling questions about academic freedom, the jury agreed with Churchill, but the judgment was vacated on the ground that the Regents had acted in a “quasi-judicial” capacity and thus enjoyed the same kind of immunity that protects judges from liability to dissatisfied parties in cases they decide. Churchill is now asking the U.S. Supreme Court to overturn this decision.
Arizona: State of Confusion
The saga over the fate of Arizona’s Mexican-American Studies Program (MAS) just got more confusing (see CN116). In Acosta v. Huppenthal, a federal district court upheld most of a state law banning the teaching of ethnic studies.
However, in a separate decision in a long-running school desegregation case, a different federal judge issued an order that, according to the U.S. Department of Justice, requires Tucson schools to adopt “culturally responsive curricula to engage and increase the academic achievement of African-American and Latino students [and] programs to support [their] academic success and engagement.” In fact, MAS was originally developed in response to an earlier ruling in this case. How these apparently conflicting decisions will actually be reconciled remains to be seen.
In an interesting twist, on March 20 John Pedicone, the superintendent of the Tucson Unified School District, announced his resignation, effective June 30, a year before his contract ends. Pedicone said disagreements over the way the district handled MAS “pushed other educational efforts off course.”
Harmful to Minors: Butt v. State of Utah
NCAC routinely encounters censorship to protect minors from allegedly “harmful” material. Unfortunately, the Supreme Court recently declined to hear the case Butt v. Utah, which might have provided much-needed guidance about the permissible scope of state “harmful to minors” laws by clarifying that representations of nudity don’t lose First Amendment protection just because minors might be exposed to them.
We’re grateful to Jenner & Block, whose pro bono assistance allowed NCAC to make these arguments to the Court in an amicus curiae brief.