William & Mary Bill of Rights Journal


Caine Caverly


Through 2016 and 2017, a team led by Canadian virologist David Evans, and funded by an American pharmaceutical company, attempted to synthesize the previously extinct horsepox virus. After just six months and an expenditure of $100,000, the research team was able to successfully construct the virus “using only commercially available information, technology and tools.” In January of 2018, the team went on to publish their information in an American-based journal, PLOS ONE.

The publication was controversial because it included a potential “blueprint” for the synthesis of a genetic strand in the same viral family as the highly lethal, albeit eradicated, smallpox virus. Though horsepox does not itself cause infection in humans, some have argued that the findings presented in PLOS ONE are dangerous nonetheless because “[t]he publication of the horsepox synthesis process lowers technical hurdles for making smallpox de novo.” Evans himself recognized the prospective risks inherent in such works, noting that although he notified the proper regulatory authorities, they “may not have fully appreciated the significance of, or potential need for, regulation or approval of any steps or services involved in the . . . synthesi[s] and replicat[ion] [of] a virulent horse pathogen.”

Research such as Evans’s, which does not pose an immediate threat but could be detrimentally misapplied for a possible bioterrorist attack, is not itself unique. This type of research is categorized as dual use research of concern (DURC). The Office of Science and Technology Policy, which advises the executive branch on the effects of science and technology on domestic and international affairs defines DURC as: "life sciences research that, based on current understanding, can be reasonably anticipated to provide knowledge, information, products, or technologies that could be directly misapplied to pose a significant threat with broad potential consequences to public health and safety, agricultural crops and other plants, animals, the environment, materiel, or national security."

In the case of the horsepox virus, though the intent of the research—an attempt to craft a less toxic alternative to the smallpox vaccine—was inherently noble, its publication posed a potentially insidious threat to national security because of its ability to serve as a blueprint for the synthesis of smallpox. The commercial availability of the research team’s materials, the relatively modest sum that was needed, and the short amount of time in which the synthesis was concluded, all contribute to the conclusion that replication and ill-intended expansion may not be difficult tasks to achieve.

The publication of materials regarding DURC poses a difficult dilemma for research journals. The situation often forces publishers to choose between two, potentially antagonistic, options: help advance scientific progress through the proliferation of new information, or help ensure national security by limiting the chance of harmful information falling into the hands of nefarious actors. Transparency within the scientific community allows other researchers to build upon previous research rather than expending unnecessary resources in an attempt to reinvent the wheel. This is particularly useful in the quickly evolving field of genetic research. Contrarily, those whose arguments are more concerned with ensuring national security raise worries that the potential benefits do not outweigh the great risks within the current regulatory regime.

Weighing these conflicting arguments invokes several different considerations: bioethical, economic, and, most pertinent to this Note, constitutional. More specifically, the publishers must balance the compelling interest in ensuring national security with freedom of the press protections afforded by the First Amendment.

The research and publication regarding the horsepox virus exemplifies this DURC dilemma. Prior to getting published in PLOS, David Evans’s team was turned down by two other research journals who refused to publish its findings due to the potential complications arising from dual use research of concern. Furthermore, the subsequent calls for increased regulatory oversight and censorship over such research help frame the underlying concerns and establish the timely need for guidance in this area. This need for guidance is particularly acute regarding the constitutional concerns which necessarily follow all requests for prior restraint over the publication of any subject matter.

Although numerous political commentators, scientists, and bioethicists have commented on the issue of DURC and the oversight policies that are currently exercised over it, there has been a notable lack of discussion regarding the First Amendment rights of the researchers. To the extent that there has been such discussion, the constitutional arguments have largely been used as a shield against any call for restraint placed on the publications. To be certain, arguments for a regime in which the government is more inclined to censor a work, or disqualify it for publication altogether, are hampered by the fact that courts have been remarkably hesitant to permit prior restraint over publications in general. This idea is exemplified by the relatively high success rate of journalists in Supreme Court litigation involving press regulation.

This is not to suggest, however, that the government is never permitted to subject a publication to increased oversight or censorship. The Supreme Court has articulated an exception in instances where national security is at stake. In Near v. Minnesota, a seminal case in the jurisprudence of prior restraint, the Supreme Court articulated that curtailing the First Amendment may be warranted in instances where the nation is at war and thus subject to a unique threat of danger. The Court stated that “[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” Since the Near decision came down in 1931, this exception has been interpreted incredibly narrowly.28 Due to the Court’s current hesitancy in accepting prior restraint, any calls for censorship over publications involving DURC would face an uphill battle in articulating a strong enough justification for the restraint in terms of national security interests.

The purpose of this Note is to suggest that the courts should reevaluate the high burden associated with the national security exception articulated in the Near decision. The Court’s reasoning in that case is nearly 100 years old. Threats to national security no longer come in the exclusive form of bullets and bombs. “In an age of terrorism, it is not just guns, explosives, and chemical or radiologic hazards that destabilize communities and countries; there is also the prospect of accidental or deliberate release of dangerous pathogens.”

As gene-editing technologies continue to evolve and become more readily available to actors who may have interests adverse to those of the State, the potential for biowarfare on a national scale increases significantly. In instances such as the recent horsepox debate, where the published materials decrease the burden of synthesizing a deadly virus and thus increase the potential for bioweaponization, courts should be less tentative in considering some form of prior restraint.

Part I of this Note will explore key cases involving the application of the prior restraint doctrine. It will particularly focus on cases involving restrictions placed against publications alleged to have threatened national security in some capacity. Part II will explore in more detail the dangers associated with the publication of dual use research of concern, whether those dangers be in the form of a bioterrorist application or accidental exposure by unregulated entities. Part II will also apply the courts’ reasoning discussed in Part I to an argument in favor of exploring the potential applicability of prior restraint in the context of dual use research of concern.