2004 Articles

The New Censorship: Institutional Review Boards

Hamburger, Philip

In sum, the federal regulations on IRBs (Institutional Review Boards) would appear to violate the First Amendment. This will become apparent from six observations: (I) at least for verbal speech and the press, the First Amendment absolutely bars laws requiring licensing; (II) the federal regulations on IRBs set up a system of licensing; (III) these regulations target and even specify speech and the press as the object of their licensing, including verbal speech and the press; (IV) the federal government imposes this licensing by means of unconstitutional regulatory conditions on federal spending and by means of state tort law; (V) the injury arising from research on human subjects does not justify the licensing; (VI) the licensing causes serious injuries to researchers and their use of speech and the press.These observations reveal that the federal regulations on IRBs are constitutionally vulnerable.They further suggest that the regulations establish a new censorship, which dispels opposition through its mild and moral tenor,but which remains as unconstitutional as the old. Most broadly, they hint at the danger of Supreme Court doctrines that undermine enumerated rights-doctrines that allow those in power to believe they need not worry about abridging such rights and that leave those whose rights are abridged without confidence that they have constitutional grounds on which to protest.