And who can doubt that it will lead to the worst disorders when minds created free by God are compelled to submit slav- ishly to an outside will? When we are told to deny our senses and subject them to the whim of others? When people devoid of whatsoever competence are made judges over experts and are granted authority to treat them as they please? These are the novelties which are apt to bring about the ruin of commonwealths and the subversion of the state. —Galileo, in the margin of his own copy of Dialogue on the Great World Systems 1 O n June 29, 2006, the Vatican announced that it would ex- communicate any woman, sci- entist, or politician who participates in or facilitates embryonic stem cell re- search. 2 Galileo would not be surprised. After all, he was threatened with excom- munication merely for endorsing the Copernican view that earth, and by ex- tension humanity, is not the center of the universe. But at least the Vatican’s basis for ex- communication this time is its assertion that embryos are the moral equals of women, patients, and babies, and as such may not be killed to benefit others. Similar, purportedly secular calls to ban certain areas of research and to jail the scientists who pursue them are based on little more than fear of social disruption and a debasement of our “humanity,” a fear far more akin to the earlier Vatican efforts to stifle research that challenges fundamental cultural, political, and the- ological beliefs. Although still tentative, recently there has been increased attention to the question of whether the First Amend- ment, which is commonly understood to protect speech against government censorship, ought to protect basic sci- ence research. Beginning in the 1970s with a seminal article by John Robert- son, and more recently with additional articles focused on cloning research in particular, the question has been raised: can scientific research be viewed as a form of protected “speech”? 3 The First Amendment does not pro- tect only those words spoken aloud or written on paper. It also protects so- called “expressive conduct,” such as the wearing of a piece of clothing that is in- tended to convey a message. Indeed, ex- pressive conduct is so well protected that it precludes government bans on the burning of the very flag that represents a country whose constitution protects ex- pressive conduct. In analyzing First Amendment pro- tection of free speech, legal scholars have usually asked whether it ought to be protected because the action (research) is a precursor to the speech (publication of results), but such arguments have failed to gain traction. Others have fo- cused on the publication of scientific in- formation, but not on the underlying re- search itself. A different approach would be to ask whether the action itself—the research—is in itself a form of expressive conduct—conduct that sends a message. Research on the origins of the species, such as that conducted by Dar- win, could be viewed as implicitly con- veying a message, with that message being a rejection of extant religious and cultural views about the singularity of humans and a substitution of a world view in which humans are part of a con- tinuum of the animal world. Indeed, ac- cording to Goethe, Copernicus’ work was perceived as having just such an ef- fect: Of all discoveries and opinions, none may have exerted a greater ef- fect on the human spirit than the doctrine of Copernicus. The world had scarcely become known as round and complete in itself when it was asked to waive the tremen- dous privilege of being the center of the universe. Never, perhaps, was a greater demand made on mankind—for by this admission so many things vanished in mist and smoke! What became of our Eden, our world of innocence, piety and poetry; the testimony of the senses; the conviction of a poetic-religious faith? No wonder his contempo- raries did not wish to let all this go and offered every possible resistance to a doctrine which in its converts authorized and demanded a free- dom of view and greatness of thought so far unknown, indeed not even dreamed of. 4 In the modern world, research on the origins of life, such as synthesizing artifi- cial chromosomes, using cloning to mimic the process of natural fertiliza- tion, or combining human and non- human cells to form hybrids and chimeras are all actions that challenge both what commentator Wesley Smith calls “human exceptionalism” (which he contends is the bedrock of human rights) and what Leon Kass, the former head of the Bush bioethics council, calls “the meaning of being human.” 5 More recently, human “enhancement” re- search and neuroelectronics have been singled out as threats to our species and an avenue toward “transhumanism.” Any scientist who pursues these lines of research is implicitly rejecting the reli- gious and political view that humanness is and must remain beyond dispute, be- yond change, and beyond exploration. 12 HASTINGS CENTER REPORT September-October 2006 Fear and the First Amendment by R. Alta Charo policy & politics