« (Still) more on "The Freedom of the Church" | Main | Channeling Whistleblowers »

Tuesday, September 16, 2014

Scientific misconduct and the First Amendment

This proposal to make scientific misconduct a crime would seem to raise serious First Amendment problems, certainly under the Kennedy plurality in United States v. Alvarez. If false statements are not categorically unprotected, regulations must survive strict scrutiny, and counter-speech is always available, it seems to me that any attempt to regulate false scientific results are as vulnerable as the ban on false statements about military service. Interestingly, such a criminal prohibition might fare better under the squishier balancing proposed by Breyer's Alvarez concurrence, given the more tangible harms from false scientific research (Andrew Wakefield, anyone?). But I do not think receipt of salary from the university should matter; we do not prosecute people for not doing their jobs well, even intentionally. And to the extent a scientist receives grant money requiring honest research and produces false results, charges of fraud or false monetary claims already should be available.

Posted by Howard Wasserman on September 16, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Comments

Hi Howard,

Alvarez did not disturb the federal fraud statutes. In fact, Kennedy's opinion distinguishes frauds from the type of falsehoods that impose no "legally cognizable harm" on others. So if one can characterize scientific misconduct as a kind of fraud (e.g., knowingly publishing false results in order to secure or maintain public or private funds), why isn't this type of behavior either: (a) punishable under its own statute, should Congress care to draft one, or (b) already punishable under either the mail or wire fraud statutes?

M

Posted by: Miriam Baer | Sep 17, 2014 9:25:22 AM

Post a comment