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The freedom of scholars to express ideas and exchange them with colleagues is essential to the operation of universities in the United States and to maintaining the high quality of academic Academic freedom is rooted in the First Amendment to the Constitution, the same provision that protects the right of people to speak freely and the freedom of the media to report events as they see them.
Recent actions and proposals by some agencies of the federal government threaten to erode the American tradition of academic freedom. These proposals and actions fall into two broad categories those restricting dissemination of ideas and those restricting the access of foreign scholars to U.S. classrooms and laboratories.
In most instances, the justification given for these restrictions is the need to protect national security, an area in which technology plays an increasingly important role.
Responding to mounting government concern that technological information with potential military applications may be reaching the Soviet Union and other adversaries through industry and the scientific community, the National Academy of Sciences (NAS) issued a report in September, 1982 on Scientific Communication and National Security. The study was conducted by an NAS panel chaired by former Cornell University President Dale Corson. authors expressed the hope that their recommendations would make it possible to "establish within the Government an appropriate
group to develop mechanisms and guidelines in the cooperative spirit that the report itself display[ed]."1
Universities, which conduct most of the basic scientific research in the United States, were a primary focus of the NAS study. The report found "a substantial transfer" of U.S. technology to the Soviet Union, but concluded that "very little" of the problem resulted from open scientific communication. Morethe report took note of the close connections between the American tradition of open communication, scientific and technological innovation, and national security. Despite this conclusion, NAS staff members reported this year that government policymakers are moving to implement new secrecy regulations before a government-wide consensus is reached.3 The staff also stated
that where regulations already exist, policymakers are aggressively stretching their authority beyond its previous limits.
These secrecy regulations often go far afield of any reasonable definition of national security. Indeed, the requirements of prepublication review now reach several federal departments and agencies and areas of sponsored research which have no relationship to national security matters. Nor is the regulatory
National Academy of Sciences, "Scientific Communication and
M. Wallerstein and L. McCray, "Update of the Corson Report",
scheme limited to research that is federally funded. Instead, it is being extended to broad categories of research and information -- such as cryptography and nuclear energy -- that are deemed to be so sensitive and important that the federal government must intervene whether or not it is paying for the research.
The movements afoot in Washington to restrict publication and dissemination of scientific research findings are matters of deep concern among members of the academic community. Similar concerns also arise over government restrictions on the activities of foreign scholars.
These concerns are addressed in the pages that follow.
I. Prepublication Review and Contract Restraints
Political philosophers have long maintained that the rights of free speech and of a free press are essential to the proper functioning of democracy. The importance of open communication
in our society has been so compelling that courts have held that only an overwhelming danger "so imminent that it may befall before there is opportunity for full discussion" provides sufficient grounds for restraining free speech. If the danger or evil is not imminent, then the remedy is "more speech, not en4 forced silence.
Until very recently, any proposed prior restraint on publication has come under a "heavy presumption against its ..5
constitutional validity." This presumption was so dominant that only narrowly focused government claims of national security during wartime could be balanced against it. For example, the Supreme Court held in Near Minnesota that publishing "the sailing dates of transports or the number and location of troops" would be the only kind of publishing activity the government could rightfully prevent in such circumstances.
Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis,
United States of America V. The Progressive, Inc.,
467 F. United
283 U.S. 697,716 (1931).