HAROLD H. GREENE, UNITED STATES DISTRICT JUDGE
The principal legal issue in this lawsuit -- the extent to which the government may curtail the speech of a recipient of a government grant -- is related to that which was recently resolved by the Supreme Court in Rust v. Sullivan, 114 L. Ed. 2d 233, 111 S. Ct. 1759 (1991), a case involving abortion counseling in family planning clinics. This Court has carefully considered that decision as well as other, prior appellate law dealing with the issue in question and, in the context of pending cross-motions for summary judgment,
it is resolving the dispute in favor of plaintiff Stanford University.
In August 1989 the National Heart, Lung, and Blood Institute (Institute) of the National Institutes of Health
issued a notice that it planned to award contracts for a five-year research project on an artificial heart device. The research was to be conducted at two separate academic institutions, each of which was to receive a government grant of approximately $ 1.5 million. The notice indicated that the contract might include a clause known as the Confidentiality of Information Clause (confidentiality clause) which would require researchers to obtain government approval before publishing or otherwise publicly discussing preliminary research results. In October 1989 Dr. Philip Oyer, a professor of cardiovascular surgery at Stanford Medical School, submitted a proposal on behalf of Stanford in response to the notice. Stanford's proposal objected to several provisions of the notice, particularly the confidentiality clause, and ultimately, when Stanford and the government could not agree with respect to the clause, the government withdrew the contract from Stanford and awarded it elsewhere.
Stanford argues that the confidentiality clause constitutes an illegal prior restraint and an unconstitutional condition on a government benefit.
The relief requested is a declaratory judgment that this clause is unconstitutional and an injunction requiring the Institute to re-award the contract to Stanford.
The confidentiality clause requires researchers to give the government advance notice of their intent to publish preliminary findings,
and it allows the government's contracting officer to block such publication.
More specifically, under the clause, a researcher must give forty-five days advance notice that he plans to publish preliminary findings. If the contracting officer objects to the publication, the researcher may file a written claim with him, and the contracting officer then has an additional sixty days in which to decide that claim. The contracting officer's ultimate decision is final and binding (except that the researcher may file suit in court). See 48 C.F.R. § 52.233-1.
It is well established that under the law this procedure constitutes a prior restraint on speech in that it allows the government to suppress the dissemination of information in advance of publication.
Prior restraints are permitted "only in exceptional cases." Near v. Minnesota, 283 U.S. 697, 716, 75 L. Ed. 1357, 51 S. Ct. 625 (1931). "Any system of prior restraint . . . 'comes to . . . Court bearing a heavy presumption against its constitutional validity.'" Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963)).
These principles apply to the kind of speech involved in this case. The most typical prior restraint cases involve political or artistic speech. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971) (publication of Pentagon Papers); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975) (performance of musical "Hair"). It is equally settled, however, though less commonly the subject of litigation, that the First Amendment protects scientific expression and debate just as it protects political and artistic expression. Miller v. California, 413 U.S. 15, 34, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973); Roth v. United States, 354 U.S. 476, 484, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957); United States v. U.S. District Court for Cent. Dist. of Cal., 858 F.2d 534, 542 (9th Cir. 1988).
The defendants now concede
that the government could not impose the kind of restraint contemplated by the regulation on scientists whose research is not paid for by a government grant or contract. The question before the Court therefore is whether the grant of public funds takes the present situation out of the category of impermissible suppression of speech.
Prior to the issuance by the Supreme Court of the decision earlier this year, the law regarding speech-type conditions attached to government grants was less than clear. Although there were factual differences among the cases which could be, and were, cited as responsible for the particular results reached in the various cases, it has become increasingly difficult to discern a principled rule applicable to all the various situations.
Among the principal decisions in recent years upholding the constitutionality of speech-type restrictions accompanying particular contracts or subsidies are Regan v. Taxation Without Representation (TWR), 461 U.S. 540, 76 L. Ed. 2d 129, 103 S. Ct. 1997 (1983); Cammarano v. United States, 358 U.S. 498, 3 L. Ed. 2d 462, 79 S. Ct. 524 (1959); DKT Memorial Fund Ltd. v. Agency for Int'l Dev., 887 F.2d 275 (D.C. Cir. 1989); and among those which found restrictions to be invalid are Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); FCC v. League of Women Voters, 468 U.S. 364, 82 L. Ed. 2d 278, 104 S. Ct. 3106 (1984); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987); Big Mama Rag, Inc. v. United States, 203 App. D.C. 448, 631 F.2d 1030 (D.C. Cir. 1980); Speiser v. Randall, 357 U.S. 513, 2 L. Ed. 2d 1460, 78 S. Ct. 1332 (1958).
In view of the confusion among the prior decisions, if for no other reason, it is most useful to concentrate on the holding and reasoning in the decision handed down earlier this year in Rust. Moreover, to the extent that prior decisions of the Supreme Court or the lower courts conflict with Rust, they have of course been expressly or impliedly overruled.
In Rust v. Sullivan, the Supreme Court upheld a regulatory restriction
which prohibits health professionals in government-funded family planning clinics from discussing abortion with their patients. After referring to and analyzing the cases referred to above, the majority of the Supreme Court concluded that the restriction does not impinge on the First Amendment rights of these medical workers and that it is therefore valid. That of course is the law and this Court, like all lower courts, is bound thereby. There are, however, two bases upon which, under the Rust Court's own language, the Rust result does not follow here.
First. The Supreme Court made a sharp distinction in between the denial of a benefit to an individual on account of his speech or expression (which is constitutionally prohibited) and an insistence that public funds be spent for the program purposes for which they were authorized (which the Constitution allows). Said the Court:
The Secretary's regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. Title X expressly distinguishes between a Title X grantee and a Title X project. . . The Title X grantee can continue to perform abortions, provide abortion-related services, and engage in abortion advocacy; it simply is required to conduct these activities through programs that are separate and independent from the project that receives Title X funds.
In contrast, our "unconstitutional conditions" cases involve situations in which the government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally-funded program.