Government Regulation or Other 'Abridgements' of Scientific Research: The Proper Scope of Judicial Review Under the First Amendment

108 Pages Posted: 28 Jul 2005

See all articles by Barry McDonald

Barry McDonald

Pepperdine University - Rick J. Caruso School of Law


As science increasingly pushes forward the frontiers of knowledge and enables the development of technologies with the capacity to alter or destroy life, more and more calls are being heard to prohibit or regulate different areas of scientific research. As government responds to these demands, others warn that such regulations threaten to substantially impede the progress of science and the benefits it has bestowed on humankind while doing little to address the alleged harms from certain areas of research. Ever present in these debates are arguments, concerns and assumptions that are voiced about the constitutional status of scientific research that have never been addressed by the U.S. Supreme Court - but promise to be in the near future. This Article contends that the surprisingly small amount of legal literature that has seriously addressed this important issue, has focused primarily on a narrow doctrinal debate that does not come close to resolving this complex problem. Employing several different modes of constitutional interpretation that are recognized today as being key to analyzing such important questions, including a more comprehensive and updated analysis of arguments from precedent and doctrine, this Article concludes that the most viable source of constitutional protection for scientific inquiry - the freedoms of speech and press guaranteed by the First Amendment - does not protect a right of research per se. However, those clauses do provide protection against restrictions on scientific expression, of both a direct and incidental nature, that frequently will provide a basis for the constitutional review of regulations alleged to unduly interfere with the research process. This analysis has important implications for the conduct of science in this country, and especially for the dominant portion of that research which is performed by scientists in private industry and other non-academic environments who do not ordinarily publish their findings. To the extent scientists and those that enable their research seek constitutional review of restrictions that allegedly interfere with it in an unreasonable manner, those claims will be correspondingly weakened or strengthened depending on the extent those parties can show their research efforts cohere with a central purpose of the First Amendment - to facilitate the free flow of ideas and information in society, including those of a scientific nature.

Keywords: First amendment, free speech, scientific research, science

Suggested Citation

McDonald, Barry, Government Regulation or Other 'Abridgements' of Scientific Research: The Proper Scope of Judicial Review Under the First Amendment. Emory Law Journal, Vol. 54, 2005, Available at SSRN:

Barry McDonald (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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