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enjoined from discussing matters on which they had worked.

view of academia's traditional role of providing a forum for criticism and debate, the restrictions in NSDD 84 would significantly reduce the scope of academic freedom.

re

The

Full implementation and enforcement of NSDD 84 is currently being held in abeyance as a result of a Senate resolution questing further consideration by the Reagan Administration. resolution expires at the end of 1984. While no government employees are currently required to take polygraph exams under NSDD 84, "120,000 employees have signed lifetime censorship agreements "24 through Form 4193.

B. Government Sponsored Research

The funding is

Most major universities receive funding for basic scientific and social research from the federal government. generally bestowed through contracts and grants between federal agencies and individual institutions. The terms of a contract or grant are subject to the statutory mandate and regulations of the funding agency.

In recent years, a growing number of federal agencies have inserted prepublication review clauses in university contracts, even those involving only unclassified material. For example,

24

See "Hear No Evil, Speak No Evil, Publish No Evil", N.Y.
Times, August 16, 1984.

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publication restrictions have been proposed for unclassified research to be performed under contract with the Department of the Air Force ("Measurement of Lifetime of the Vibrational Levels

of the B State of N2"), the National Institutes of Health ("International Comparison of Health Science Policies"), the National Institute of Education ("Education and Technology Center"), the Department of Housing and Urban Development ("Study on Changing Economic Conditions of the Cities"), the Environmental Protection Agency ("Conference on EPA's Future Agenda"), the Health Resources and Sciences Administration ("Workshop for Staff of Geriatric Education Centers"), and the Food and Drug Administration ("Development of a Screening Test for Photocarcinogenesis on a 25 Molecular Level").

Although prepublication review arose from national security concerns about the illicit transfer of technology to unfriendly governments, some of the most restrictive proposed contract clauses are contained in non-technological, social-research contracts. Apparently, federal agencies believe they can in this way insure that the research they fund is consistent with their view of their mission. The following is a clause from a proposed contract offered by the Department of Housing and Urban Development for university research on the use of housing vouchers:

Approval or disapproval (in part or in total) of the final report shall be accomplished by the GTR within thirty (30) days after receipt. Disapproved reports shall be resubmitted for review following correction of the cited

25

Examples of the publication restrictions proposed by these and other federal agencies are set forth as Attachments B-F.

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deficiency unless otherwise directed by the contracting officer.

Consider another clause from a contract offered by the National Institute of Education:

The contractor shall not disclose any confidential information obtained in the performance of this contract. Any presentation of any statistical or analytical material or reports based on information obtained from studies covered by this contract will be subject to review by the Government's Project officer before publication or dissemi nation for accuracy of factual data and interpretation. [Emphasis added.]

In addition, two other contract provisions referred to commonly as "Technical Direction" and "Changes" clauses, are used to alter the outcome of a given project. This is done either by direct participation in the project by a government official (technical direction) or by changing without notice the content and/or scope of the research contract without the researcher's agreement (changes clause).

28

Harvard's Office of Sponsored Research (OSR) reports success in negotiating changes in all three types of restrictive clauses. These negotiated changes enable the University to accept such contracts and perform them successfully. However, the Environmental Protection Agency in one instance has flatly refused to

27

28

Housing Voucher Demonstra

National Institute of Education: Education and Technology
Center Contract.

Pertinent clauses exemplifying such contracts are set forth in the attachments.

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negotiate, offering a research

contract only on a take-it-orleave-it basis. But what is more important, OSR reports increasing resistance to negotiate deviations from standard agency provisions in all agencies. The University has accordingly refused some contracts.

In sum, the federal government is increasingly asserting an authority to require prepublication review of intellectual work by government employees, research universities and private citizens. As a result, the imposition of censorship has grown substantially beyond the boundaries of the traditional wartime national security exception to the ban on prior restraints that has long been a fundamental element of First Amendment doc29

trine.

29

The government's direct and indirect interference with the presentation of research papers at scientific conferences is apparently accomplished through claims of contract and export control authority (Society of Photo-Optical Instrumentation Engineers [1982], 150 papers withdrawn; International Conference on Permafrost [1983], 6 papers withdrawn). For information on additional incidents of prepublication review and contract secrecy see Wallerstein, supra, at 10-11. The overall environment in which restrictive information policies are developing has also caused an increasing amount of self-censorship among scientists. The Washington Post recently reported that "[a] growing number of scientific and engineering societies are banning foreigners from their meetings for fear of violating federal rules against exporting strategically important technical information." Washington Post, December 15, 1984. See generally pp. 19-28, infra.

President Reagan established the current system of security 30 classification in 1982 by Executive Order 12356. To grasp the import of this new system, one must first understand the security systems used by previous administrations.

Although the security classification systems used during the Truman, Eisenhower, Nixon, Ford and Carter administrations differed in their details, each contributed to a gradual trend toward government recognition of "the public's interest in the free circulation of knowledge by limiting classification authority, by defining precisely the purposes and limits of classifi„31 cation, and by providing procedures for declassification."

The classification system designed by the Carter Administration 32 was the culmination of this trend. It required government officials "to balance the public's interest in access to government information with the need to protect certain national security information from disclosure." "33 It stipulated that even if

30

31

E.O. 12356, 47 F.R. 14874 (April 2, 1982).

Rosenbaum, Tenzer, Unger, Van Alstyne and Knight, "Academic Freedom and the Classified Information System", Science Vol. 219, January 21, 1983 at 257.

32

E.O. 12065, 43 F.R. 28949 (June 28, 1978).

E.O. 12065, Preamble.