NPRM: How to Exclude Journalism?

Few if any argue that journalists should be required to submit their work to IRB review. Some IRB apologists think journalism is too important to bear restriction, while others consider it so full of “blatant bias and even hyperbole” that it doesn’t deserve the dignity of review. But all participants in the debate, at least in United States, seem uncomfortable with the idea of subjecting journalists to prior restraint.

The question, as always, is how to draw the line between journalism and regulated forms of conversation. The NPRM’s proposed rule attempts to do so with a specific exclusion for “Oral history, journalism, biography, and historical scholarship activities that focus directly on the specific individuals about whom the information is collected.” Will that suffice?

Neither the NPRM's language nor SACHRP's proposed replacement is quite right, so let me suggest an alternative.

In his NPRM comments, Charles Seife, professor of journalism at NYU, fears that it will not. He writes,

I believe that it is incorrect to modify or define “journalism” in such a manner. Much journalism does not “focus directly on the specific individuals about whom the information is collected.” Journalists routinely gather information from and about individuals who are not the direct focus of our work. But the plain-language interpretation of the regulation as written would raise questions about whether, for example the following journalistic activities would be excluded from oversight:

• Interviewing a whistleblower for a story about a corporation’s malfeasance
• Interviewing a editor for a story about a plagiarized paper that appeared in a scientific journal
• Interviewing a scientist for a story about another scientist’s work
• Conducting a survey to gather opinions about a political race
• Analyzing government personnel records to determine how agency inspectors go about their jobs

In each case, the journalist would be gathering information from and about human subjects, yet the focus of the activity in each case is not upon the individuals about or from whom the information is collected.

The language of the final rule should make clear that journalism – without qualification – is excluded from the definition of research. Such an exclusion is the proper thing to do, ethically as well as legally.

OK, but how to exclude journalism without qualification? I see three basic options.

1. Eliminate IRBs entirely. Let’s face it: they don’t work. Alas, this is not on the table.
2. Restrict the Common Rule to its statutory authority over “biomedical and behavioral research.” This is Seife’s preference, and it’s a great idea. Unfortunately, it’s not one the NPRM contemplates. To the contrary, the NPRM’s proposed rule would take us further from the statute.
3. Tinker with the proposed rule.

SACHRP recommends option 3. In its comments, it proposes modifying the proposed rule to exclude:

Oral history, journalism, biography, historical, and other scholarship activities whose purpose is to collect and share evidence-based portrayals of specific individuals who have been selected as a result of the relevance of their personal experience to the phenomena being studied.

This is not quite right, since, as Seife points out, history and journalism interviews do not merely collect portrayals of the people being interviewed, but also other information known to specific individuals. A better exclusion would be for

Oral history, journalism, biography, historical, and other scholarship activities whose purpose is to collect and share information from specific individuals who have been selected as a result of the relevance of their personal experience to the phenomena being studied.