united-states constitutional-law
Is the right to engage in scientific inquiry a fundamental right?
<p>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.</p>

<p>There is some precedent for claiming a right to free scientific inquiry. For example, the primary holding of <a href="https://supreme.justia.com/cases/federal/us/413/15/" rel="noreferrer">Miller  v.  California</a>,  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 <a href="https://supreme.justia.com/cases/federal/us/262/390/" rel="noreferrer">Meyer v. Nebraska</a>, 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</p>

<blockquote>
  <p>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, <strong>to acquire useful knowledge</strong>, 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</p>
</blockquote>

<p>In <a href="https://supreme.justia.com/cases/federal/us/381/479/" rel="noreferrer">Griswold v. Connecticut</a>, 381 U.S. 479 the court finds that</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>In <a href="https://law.justia.com/cases/federal/district-courts/FSupp/303/62/1623638/" rel="noreferrer">Henley v. Wise</a>, 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</p>

<blockquote>
  <p>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</p>
</blockquote>

<p>Then in <a href="https://supreme.justia.com/cases/federal/us/408/665/" rel="noreferrer">Branzburg v. Hayes</a>, 408 U.S. 665, the court glancingly groups academic research with other forms of First Amendment protected activities:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p><a href="https://law.justia.com/constitution/california/article_35.html" rel="noreferrer">Article 25</a> of the California constitution recognizes a specific research right</p>

<blockquote>
  <p>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.</p>
</blockquote>

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

<p>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. </p>

<p>There is no body of constitutional law to that effect.</p>

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

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>
