The First Amendment & the Free Flow of Information: Towards a Realistic Right to Gather Information in the Information Age

108 Pages Posted: 16 Apr 2009  

Barry McDonald

Pepperdine University - School of Law

Date Written: April 15, 2009


In a series of cases beginning in the 1960s and extending through the present time, the Supreme Court has struggled with determining the extent to which the First Amendment’s protection for freedom of expression applies to the gathering of information for the purpose of engaging in speech. The resulting First Amendment “information-gathering” jurisprudence is anomalous in the general scheme of free speech law in that it generally disfavors “flows of information” of an inherently political nature, and the protection that is extended to information-gathering activities tends to be applied to one select type of information-“news.” Professor McDonald argues that such a jurisprudence is inadequate to facilitate a “free flow of information and ideas” that is the hallmark of a society which places a premium on information and knowledge. Increasingly, the First Amendment is being invoked not only to protect the gathering of news by the institutional press, but also to protect academic and scientific research, information gathering by private research and policy organizations, and the collection and dissemination of information over the Internet. A logical extension of the “structural” theory of the First Amendment-which the Court has endorsed and which provides protection to the “essential processes” of communication necessary to facilitate an informed public discussion of important societal matters-would justify the recognition of a more uniform, but limited, First Amendment right to gather many different types of information of public concern. This right could be invoked only by those individuals and groups whom our society recognizes as performing an important and valued information-gathering and dissemination function as evidenced by certain objective criteria suggested in this Article.

Keywords: first amendment, speech, expression, Supreme Court, bill of rights, free speech, news, information-gathering, protection, press, structural theory, dissemination

JEL Classification: K1, K13, K19

Suggested Citation

McDonald, Barry, The First Amendment & the Free Flow of Information: Towards a Realistic Right to Gather Information in the Information Age (April 15, 2009). Ohio State Law Journal, Vol. 65, No. 2, 2004. Available at SSRN:

Barry McDonald (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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