excluding oral history from IRB is a win for the First Amendment, but doesn’t go far enough

Don Ritchie reports,

On 8 September 2015, a 20-year struggle culminated in a ruling from the US Department of Health and Human Services that specifically excludes the following from human subject regulation: “Oral history, journalism, biography, and historical scholarship activities that focus directly on the specific individuals about whom the information is collected.”

I see this ruling as a vindication of First Amendment rights, but I don’t think it should be limited to the four named forms of research. People have the right to talk to others and to communicate what they learn. People also have the right to be talked to. In almost any form of talk, it is possible to violate ethical principles or even laws. For instance, you can commit fraud, libel, conspiracy, or harassment by speaking. But a government requirement to seek prior approval for talk is highly problematic on constitutional grounds and violates liberal principles.

I want to emphasize that I have no personal problem with seeking Institutional Review Board approval for my own research or that of my team. We get IRB approval many times a year. Our own IRB is professional, efficient, and helpful. We have never been rejected or significantly delayed. We have the capacity to handle the paperwork without hardship. My objection is not to our IRB but to federal policies–and I worry about the practical impact on other people in less fortunate circumstances.

Imagine the editor of a newspaper in a police state whose local police authorities are unfailingly polite and helpful, actually trying to support her journalism. This editor must seek prior approval for all her reporting, but it is given cheerfully and quickly. Nevertheless, her freedom has been abridged, as have the rights of the people she might choose to interview. And there is a potential for more concrete harms if the local police are not so benign.

Some Q&A’s:

What about the Tuskegee experiments and other violations of basic human rights conducted under the name of “research”? These are horrifying cases but they do not centrally involve speech. They involve giving or withholding physical treatments. They should be strictly regulated. (By the way, I would also favor the regulation of talk therapies that are comparable to medical procedures, but I don’t think surveys or interviews constitute therapies.)

Can’t you do just as much damage with words as with physical interventions? First of all, yes, you can. But that is a problem with free speech in general, not particularly with research. Journalists and bloggers can do more harm than professors because their audiences are bigger. A thoughtful argument for free speech acknowledges the potential for harm but still defends the First Amendment. Second, the kinds of harms that researchers do with words tend not to be prevented by IRB approval. Social scientists do the most damage when they argue for terrible policies, like mass incarceration, invading Iraq, or slashing taxes in order to raise revenues. IRB have no relevance to those examples. And third, prior censorship is not the best way to handle harmful speech. It is better to criticize, punish or remediate speech after it occurs. Prior censorship puts the burden in the wrong place and gives too much power to the regulators. It prevents information from even being collected, thus precluding speech that might turn out to be highly valuable.

What about research on children and prisoners? When a research subject is vulnerable, the ethical demands rise. I am not unalterably opposed to IRB review of research involving minors and prisoners. However, I remain skeptical even in those cases. First, children and prisoners have the right to be studied and to be understood. Although they can be harmed by research that (for instance) violates their privacy, they can also be harmed by rules that discourage scholars from studying them. Our presumption should favor speech, not block it. Second, prior review is only one possible approach to protecting vulnerable populations. Another option is to publish rules that guide matters like obtaining permission from minors and prisoners and then subject scholars to sanctions when they violate those rules. Again, prior review is dangerous because it prevents information from being collected, and that power can be abused.

Won’t universities be vulnerable to lawsuits unless they closely monitor their researchers’ interactions with subjects? I do not understand the relevant law well enough to know whether, if Prof. A harms a subject by interviewing her, Prof. A’s institution could be liable for damages. But even if that is the case, the solution is not to require prior permission for research that involves talk. I’d rather see the law put all the responsibility on Prof. A.

Free speech is under threat in universities today. One little part of the threat is political correctness of various sorts, which leads to short-sighted policies and decisions. But much larger threats are bureaucratic: the erosion of tenure, excessive IRB review, too much influence by funders, too much control by central administrations who are too risk-averse and too concerned about reputation. The HHS decision about oral history and journalism is a step in the right direction, but I fail to see the distinction between these forms of talk and many others that are still reviewed by IRBs.

About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.
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