Cloning: a first amendment right: some legal, experts maintain that scientific research is protected by the same constitutional guarantees as freedom of speech.

This election year, the debate over cloning technology became a circus, and hardly anybody noticed the gorilla hiding in the tent: It's just possible that the First Amendment will protect researchers who want to perform cloning research.

Leon Kass, the chairman of the President's Council on Bioethics and a cloning foe, would like to keep that a secret. "I don't want to encourage such thinking," he said during a session of the council in July. But the notion that the First Amendment creates a "right to research" has been around for a long time.

In 1977, four eminent legal scholars--Thomas Emerson, Jerome Barron, Walter Betas, and Harold P. Green--were asked to testify before the House Subcommittee on Science, Technology, and Space. There was alarm over recombinant DNA, or gene splicing. Some people feared clones, designer babies, a plague of superbacteria. The committee wanted to know if the federal government should, or could, restrict this kind of scientific research.

"Certainly the overwhelming tenor of the testimony was in favor of protecting it," recalls Barron, who now teaches at George Washington University. "I did say scientific research comes within the umbrella of the First Amendment, and I still feel that way."

Berns, a political scientist who is now at the American Enterprise Institute in Washington, D.C., didn't like this conclusion, because he feared the consequences of tinkering with nature. But he told Congress that "the First Amendment protected this kind of research." Today, he believes it protects cloning experiments as well.

But the courts never got the chance to squarely face the right-to-research issue. An oversight body called the Recombinant DNA Advisory Committee, formed by the National Institutes of Health, essentially allowed science to police itself. So the discussion was submerged. Until now.

ACADEMIC FREEDOM

The right to research is not an outlandish constitutional claim, says Cass Sunstein, a professor of jurisprudence at the University of Chicago. He calls it "a frontier issue" that has not yet been resolved.

Why legal scholars would defend the right to research is hardly mysterious. The Founding Fathers passionately defended scientific and academic freedom, and the Supreme Court has traditionally had a high regard for it. But why would the right to read, write, and speak as you please extend to the right to experiment in the lab?

Arguments in favor of applying First Amendment scrutiny to anti-research laws can be complex, but the metaphors lawyers have used are not. One compares scientists to reporters:

As with journalism, actions that are not strictly speech (research) are so necessary to speech (publishing) that to ban them is to ban the speech.

'ACT OF REBELLION'

According to R. Alta Charo, a legal scholar and bioethicist at the University of Wisconsin, "If the questions you ask and the science you do really challenges or explores cultural or religious or political norms ... that in itself is an act of rebellion, and this is exactly the sort of thing that fits comfortably in the spirit of the First Amendment."

Some bioethicists are opposed to any efforts that seem to tamper with a fixed conception of human nature. But Congress's Office of Technology Assessment addressed this issue in a 1981 report: "Even if the rationale ... were expanded to include situations where knowledge threatens fundamental cultural values about the nature of man, control of research for such a reason probably would not be constitutionally permissible."

The government can restrict speech if it can prove a "compelling interest," like public safety or national security. But courts have set that bar very high. Unlike, say, an experiment that releases smallpox into the wind to study how it spreads, which could be banned, embryo research presents no readily apparent danger to public safety.

And if that's the case, scientists who wish to create stem cells by cloning might have a new source of support to back them up: the U.S. Constitution.

Brian Alexander is the author of "Rapture: A Raucous Tour of Cloning, Transhumanism and the New Era of Immortality" (Basic Books, 2004).