Federal contracts can't gag researchers - National Heart, Lung and Blood Institute's case involving government approval for research

Science News, Nov 16, 1991

Federal contracts that require researchers to obtain government approval before publishing or reporting preliminary findings are unconstitutional, the U.S. District Court for the District of Columbia ruled in lates September. As a result, the court ordered the National Heart, Lung and Blood Institute (NHLBI) to return to Stanford University a $1.5 million contract for human trials of a "partial artificial heart." Now, NHLBI's parent agency -- the Department of Health and Human Services (HHS) -- has appealed that decision.

Last year, NHLBI awarded Stanford researchers a contract to test a "left venticular assist system" in humans. The institute withdrew that award on Aug. 31, 1990, when the Stanford team refused to accept the contract's "confidentiality" clause. Six days later, NHLBI transferred the award to researchers at St. Louis University Medical Center.

The clause in question barred researchers from publishing any preliminary findings without first obtaining permission from their contract officer, whose decision would be final and binding. HHS maintained that the clause served to prevent Stanford from releasing findings that "could create erroneous conclusions which might threaten public health or safety if acted upon" or that might have "adverse effects on ... the federal agency."

In his opinion, however, Judge Harold H. Greene called these standards "impermissibly vague." For instance, he asked: What constitutes an adverse effect on federal agency? "Who will decide whether the conclusions drawn by Stanford are erroneous -- the nonscientist contracting officer?"

Greene ruled that the Stanford researchers need not surrender their constitutional right to free speech "to a 'contracting officer' merely because a regulation issued by [the federal government] so directs." Upholding such a clause, he said, "would be an invitation to government cencorship wherever public funds flow."