Tuesday, January 16, 2007

Menikoff, "Where's the Law?"

Another paper from the 2006 conference, "Censorship and Institutional Review Boards," has appeared on SSRN: Jerry Menikoff, "Where's the Law? Uncovering the Truth About IRBs and Censorship."

Most of the article repeats claims made by Joan E. Sieber, Stuart Plattner, and Philip Rubin in their 2002 essay, "How (Not) to Regulate Social and Behavioral Research," Professional Ethics Report (Spring 2002), 1-4. They argue that any abuses by IRBs are the fault of individual IRBs, not the regulations governing them. They conclude, therefore, that "IRBs and researchers can return to true interpretation of the Belmont Report under the Common Rule, if they make use of the flexibility it offers for reasonable interpretation of its requirements." Similarly, Menikoff believes that "both the regulators, and the regulations they enforce, reflect a system that, properly understood and implemented, already imposes a fairly minimal burden on individual researchers in the area of social and behavioral research."

These arguments suggest that inflexible, inappropriate impositions by IRBs are anomalies in a fundamentally sound system. But for several years now, complaints have poured in from scholars in anthropology, communications, folklore, history, law, and sociology; from universities across the country; from researchers at the undergraduate, graduate, and faculty level. And these are just the most outrageous cases; the August 2005 issue of the Journal of Applied Communication Research, devoted entirely to the question of IRB review, suggests that many researchers suffer in silence. To blame all of these problems on individual IRBs strikes me as unfair; the pattern suggests a problem in the system itself.

How many examples must critics accumulate before Sieber, Menikoff, and others will ask if these problems are not the fault of individual IRBs, but of the application of rules designed for experimental research to non-experimental research?

Menikoff's second argument is that while IRB review of the social sciences may be bad policy, "individual researchers are not subject to a burden rising to the level of constitutional concern." Perhaps not, but since Menikoff cites no case law on what does constitute censorship, it's hard to understand how he reached this conclusion. How many questions must a board turn down before you can call it a ban?

A more complete discussion of this question can be found in Robert L. Kerr, "Unconstitutional Review Board? Considering a First Amendment Challenge to IRB Regulation of Journalistic Research Methods," Communication Law & Policy 11 (2006): 393–447. Kerr concedes that the courts have yet to offer clear guidance, but he notes that

“In a variety of contexts” the Supreme Court has declared that “even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” . . . In the interest of addressing concerns arising from abuse in biomedical research, the IRB regulations reach so far as to prevent scholars from utilizing journalistic research methods that are fully protected in other contexts. The breadth of the regulations means that scholars are not able to conduct interviews at the time that they may be most available or most fruitful, because they generally must wait at least a number of weeks before their request for IRB approval can be processed. If an interview subject is no longer available after the wait, the delay imposed by the IRB might as well be a ban. Even when permission is eventually granted, the interview sought may be lost for good during the waiting period.

Since the Northwestern conference was held in April 2006, it's likely that contributors had not had a chance to read Kerr's thoughtful paper. I hope that future legal scholarship on this issue will build on his work. I would also like to hear some explanations of why no IRB has, to my knowledge, dared assert authority to review university journalism programs.

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