A couple of days ago an American colleague sent me a link to a video of a recent seminar at the University of Michigan by Zachary Schrag, a historian from George Mason University. Zach is the author of Ethical Imperialism: Institutional Review Boards and the Social Sciences 1965-2009. This book documents how an unholy alliance of arrogant scientists and self-interested federal bureaucrats came to widen the net of ethical regulation intended to deal with acknowledged abuses in medical research to encompass virtually all empirical investigation in the humanities and social sciences. His Institutional Review Blog is essential reading for anyone interested in US developments.
Zach opens with a quote from the movie, Broadcast News (1987):
“What do you think the Devil is going to look like if he’s around? Nobody is going to be taken in if he has a long, red, pointy tail. No. I’m semi-serious here. He will look attractive and he will be nice and helpful and he will get a job where he influences a great God-fearing nation and he will never do an evil thing… he will just bit by little bit lower standards where they are important. Just coax along flash over substance… Just a tiny bit.”
He goes on to develop this theme, that IRBs are a system created – and exported – to do the Devil’s work by stealth. An apparently beneficent institution, staffed by people who present themselves as well-meaning and humane, gradually erodes the freedom of scholarship, the possibility of critical inquiry and the opportunity for innovative thinking. Scholars gradually come to shape their investigations according to what will avoid trouble with the regulator rather than what is ground-breaking or socially important. The academy is hollowed out.
This is nicely illustrated by the accompanying discussion, which is also on video. The opening thirty minutes of interaction between the formal discussants are particularly enlightening. The first speaker is a psychologist and IRB member, Cleo Caldwell, whose commentary is heavy on the desire to be helpful, to avoid enforcement through anticipatory guidance and to encourage everyone to be just that little bit more thoughtful. For her, ethical regulation is so self-evidently good that it does not need to be justified. There is no need to respond to Schrag’s charges because what reasonable person could oppose the work that she and her peers are doing? She epitomizes Schrag’s image of Satan coaxing everybody down the primrose path.
It is underlined by her interruptions of the third speaker, Carl Schneider, who holds a joint appointment in law and internal medicine. His commentary sets out the basic legal argument that regulation is only justifiable if it prevents demonstrable harm and its costs are proportionate to the benefits achieved. On these tests, echoing Schrag’s arguments, the IRB extension to social sciences fails. Moreoever, it probably contravenes the First and the Thirteenth Amendments to the US Constitution. In summary terms, a good deal of social science research is very similar to what journalists do. The Thirteenth Amendment, on ‘equal protection’, says that people in comparable situations must be treated equally by the law. The First Amendment, on ‘freedom of speech’, bars Congress from regulating journalists. If journalists cannot lawfully be regulated, then neither can social scientists.
Caldwell, however, sees where Schneider is going when he introduces the Thirteenth Amendment, and breaks in to propose that the answer to equal protection concerns is to regulate journalists in the same way as social scientists. This really is a moment at which the Devil’s mask slips and the true nature of the IRB becomes apparent. Schneider struggles to control his disdain for this trashing of 200 years of US jurisprudence and a string of Supreme Court decisions upholding the importance of free speech in a democracy, however bizarre or unpopular it may be. The public realm requires this kind of confrontation because that’s how democracies work. Pre-emptively banning speech, which includes research, other than in the most narrowly defined circumstances (mostly extreme pornography depicting acts that would be otherwise unlawful), contravenes some of the most fundamental principles on which the American polity rests. Those principles may, of course, be compromised in all sorts of other ways by unequal access to the public realm: but they cannot be compromised by law or regulation.
From a UK perspective, we can see that journalism has, in recent years, been a rather less honourable profession than social science research. Even if the malpractices are confined to particular newspapers, the reputation of the press has been sullied. Nevertheless, Lord Justice Leveson, inquiring into these abuses, has consistently affirmed the importance of avoiding any outcome that licences journalists or compromises press freedom. Should the principle of equal protection not apply in the UK as well?