The Volokh Conspiracy - Real Censorship of Reading, Research, and Writing in Libraries and Universities.--

The Standard-Times (apparently from the New Bedford, MA area) reported that a UMASS student was questioned by the government for having checked out Mao's Little Red Book. The Standard-Times then reported that it had been duped: the story was a hoax (tip to Tim Blair). Many people were outraged by the idea that the government was asserting the right--or the power--to inquire into what a student, a member of a university community, was reading.

I have been surprised by the reaction to the story because there is a massive, active program of government-sponsored censorship on campuses that is much broader than merely allowing you to check out a book and then asking you questions about it afterward.

Imagine that I want to write a research article about government abuses of power. I plan to visit a library to look at the public papers of a living person (or a dead person whose papers might embarrass a living person). In most universities, I would be prohibited by federal law--as aggressively interpreted by the federal government--from going to that library without getting PRIOR APPROVAL of a committee set up under federal law, populated with some people outside my university, deciding whether I was allowed to visit the library and read the papers I want to read. If the government had only the desire to check into where I went and what I read after the fact, that would be a serious, though comparatively minor, restriction. No, I am required to get prior approval.

That is the system of Institutional Review Boards (IRBs, formerly called human subject committees) that operates at most major universities. If the government were checking up on me only after I went somewhere or after I read something in a library or after I talked to someone or asked people questions, that would be a big improvement over the current system. The federal government has interpreted its censorship power so broadly that, even for research that is supposed to be exempt from coverage under the federal statute, the federal government has insisted that a researcher get prior approval from an IRB that the work is indeed exempt. At one university for which I've seen data, even exempt research requires over a month on average before approval is granted to do the work (in the form of an official certification that the work is exempt). The universities keep records on the research proposals and projects they approve and disapprove and submit those records to the "audits" of government officials. For non-exempt research, such as the example I gave of studying embarrassing information about living people, review would take several months on average before I could BEGIN the research. And retroactive approval is prohibited.

Ironically, as Philip Hamburger documents, the current system is much like the English 17th century censorship system that the US Constitutional framers wanted to prohibit when they adopted the First Amendment. In late 17th century England, people had to get the permission of censors before publishing books. But in most fields, the 17th century crown did not do the censorship itself; much like today, the government delegated the task to the universities. But 17th century censorship was not as far-reaching as the current system, since only publication without permission was prohibited, not the research itself (as in the current system). And it appears that 17th century censors may have been less intrusive than current-day IRBs. It was precisely to prevent a censorship system such as we have today that the First Amendment was passed.

How this massive system of goverment-sponsored censorship got going with little attention from Constitutional scholars (before Philip Hamburger) is a mystery to me. It is time for the courts to declare the IRB system what it is: unconstitutional.

UPDATE:

In comments below, James Fulford links to an excellent article on the efforts by Elizabeth Loftus and Mel Guyer to research and write about some questionable research on recovered memories of childhood sexual abuse:

The irony is that if Loftus and Guyer were journalists, they would have done precisely the same investigation unhampered and fully supported by their employer. But because they are university professors, they were subjected to a secret, shadowy investigation of their legal right to do what good reporters do every day. And their respective universities, far from supporting their intellectual inquiries and their tenured (indeed American) right to free speech, obstructed and harassed them. Some of these obstructionist efforts linger in the articles they wrote in this magazine ["Who Abused Jane Doe?" May/June and July/August 2002]. . . .

After reading David Corwin's account of Jane Doe in the journal Child Maltreatment in 1997, Loftus and Guyer decided to examine his alleged evidence of a recovered memory of sexual abuse. The stakes were high for their work as scholars, teachers, and expert witnesses, because the case was already being used in court as evidence that recovered memories of sexual abuse in childhood are reliable.

They began by looking into documents in the public record. They found a public court case of "Jane Doe" who fi[t] the description in Corwin's article, but the court records differed from Corwin's account in significant ways. They eventually met Jane Doe's mother, and became convinced that she had been falsely accused many years before, leading to the loss of custody of her daughter. They decided that this was a story worth pursuing and publishing, ideally in a popular magazine. . . .

[A month after Guyer was initially told by his IRB at the U. of Michigan that this work was exempt because it was not "research,"] Guyer received a letter, with no intervening warning that anything was amiss, telling him that his project was not exempt; in fact, that it was assigned a "disapproval" status; and that the IRB was recommending to the Office of the Vice President of Research that he, personally, be reprimanded. . . .

Appeals, protests, and exchanges ensued for nearly a year. In March 1999, Guyer received a letter from the new chair of the IRB, Stephen Gebarski, telling him that his work was indeed exempt from IRB consideration because it was not "human subjects research." . . .

Encouraged by the green light given to Guyer at Michigan, the two pursued their investigation. Then the University of Washington received an e-mail from Jane Doe, complaining that her privacy was being violated. Considering that David Corwin had published his account of her life and was traveling around the country showing videotapes of Jane at six and seventeen, and considering that no one was making her story public (and hence violating her "privacy") except Jane herself and Corwin, this complaint should have been recognized as a cry from a troubled and vulnerable young woman, and set aside. . . .

On September 30, 1999, having given Loftus fifteen minutes' advance notice by telephone, John Slattery of the University of Washington's "Office of Scientific Integrity" arrived in Loftus's office, along with the chair of the psychology department, and seized her files. She asked Slattery what the charges against her were. It took him five weeks to respond, and when he did he had transformed Jane Doe's "privacy" complaint into an investigation of "possible violations of human subjects research." Loftus later learned that lawyers in another state, who had retained Corwin as their defense expert, were trying to subpoena her personnel file in hopes of finding something there to discredit her as an expert witness for the plaintiffs. Because the University, in the face of her objection, was going forward in complying with this improper subpoena, she was forced to retain her own lawyer to stop them. . . .

In the spring of 2001, the three-member investigating committee, consisting of two clinicians and one sociologist, concluded that Loftus was not guilty of the charge of "scholarly misconduct." But the two clinicians recommended to the dean, David Hodge, that she nonetheless be reprimanded and subjected to a program of remedial education on professional ethics. They instructed Loftus not to publish data obtained by methods they regarded as inconsistent with the "ethical principals" [sic] of psychologists--that is, the methods of a journalistic investigation.

On July 3, 2001, one year and nine months after the University of Washington seized her files, and one month after Loftus won the prestigious William James award from the American Psychological Society for her decades of scientific research . . . Dean Hodge wrote Loftus a letter of exoneration. Her work, he said, "does not constitute research involving human subjects." She did not commit ethical violations or deviate from accepted research practices. She was not guilty of any misconduct. She would not have to undergo remedial education on how to conduct research.

But, oh, one more thing: She was not to contact Jane Doe's mother again or interview anyone else involved in the case without advance approval. Such meetings, he said, would constitute "human subjects research requiring Human Subjects Committee approval." . . .

"I don't see how you can write anything of value," the great anthropologist Marvin Harris told me years ago, "if you don't offend someone." Skeptical inquiry is endangered when those who are offended or threatened by knowledge are able to silence those who have something valuable to say.

Of course, Loftus and Guyer's work challenging the case of Jane Doe should not be restricted to publishing in a semi-popular journal. It should be published as well in a scholarly journal (assuming that it meets the normal standards for evidence). And it is most definitely research on a human subject.

Even professors who were publishing literary essays have have been harassed by IRBs.

	[Jim Lindgren, December 26, 2005 at 9:07pm] Trackbacks Real Censorship of Reading, Research, and Writing in Libraries and Universities.-- The Standard-Times (apparently from the New Bedford, MA area) reported that a UMASS student was questioned by the government for having checked out Mao's Little Red Book. The Standard-Times then reported that it had been duped: the story was a hoax (tip to Tim Blair). Many people were outraged by the idea that the government was asserting the right--or the power--to inquire into what a student, a member of a university community, was reading. I have been surprised by the reaction to the story because there is a massive, active program of government-sponsored censorship on campuses that is much broader than merely allowing you to check out a book and then asking you questions about it afterward. Imagine that I want to write a research article about government abuses of power. I plan to visit a library to look at the public papers of a living person (or a dead person whose papers might embarrass a living person). In most universities, I would be prohibited by federal law--as aggressively interpreted by the federal government--from going to that library without getting PRIOR APPROVAL of a committee set up under federal law, populated with some people outside my university, deciding whether I was allowed to visit the library and read the papers I want to read. If the government had only the desire to check into where I went and what I read after the fact, that would be a serious, though comparatively minor, restriction. No, I am required to get prior approval. That is the system of Institutional Review Boards (IRBs, formerly called human subject committees) that operates at most major universities. If the government were checking up on me only after I went somewhere or after I read something in a library or after I talked to someone or asked people questions, that would be a big improvement over the current system. The federal government has interpreted its censorship power so broadly that, even for research that is supposed to be exempt from coverage under the federal statute, the federal government has insisted that a researcher get prior approval from an IRB that the work is indeed exempt. At one university for which I've seen data, even exempt research requires over a month on average before approval is granted to do the work (in the form of an official certification that the work is exempt). The universities keep records on the research proposals and projects they approve and disapprove and submit those records to the "audits" of government officials. For non-exempt research, such as the example I gave of studying embarrassing information about living people, review would take several months on average before I could BEGIN the research. And retroactive approval is prohibited. Ironically, as Philip Hamburger documents, the current system is much like the English 17th century censorship system that the US Constitutional framers wanted to prohibit when they adopted the First Amendment. In late 17th century England, people had to get the permission of censors before publishing books. But in most fields, the 17th century crown did not do the censorship itself; much like today, the government delegated the task to the universities. But 17th century censorship was not as far-reaching as the current system, since only publication without permission was prohibited, not the research itself (as in the current system). And it appears that 17th century censors may have been less intrusive than current-day IRBs. It was precisely to prevent a censorship system such as we have today that the First Amendment was passed. How this massive system of goverment-sponsored censorship got going with little attention from Constitutional scholars (before Philip Hamburger) is a mystery to me. It is time for the courts to declare the IRB system what it is: unconstitutional. UPDATE: In comments below, James Fulford links to an excellent article on the efforts by Elizabeth Loftus and Mel Guyer to research and write about some questionable research on recovered memories of childhood sexual abuse: The irony is that if Loftus and Guyer were journalists, they would have done precisely the same investigation unhampered and fully supported by their employer. But because they are university professors, they were subjected to a secret, shadowy investigation of their legal right to do what good reporters do every day. And their respective universities, far from supporting their intellectual inquiries and their tenured (indeed American) right to free speech, obstructed and harassed them. Some of these obstructionist efforts linger in the articles they wrote in this magazine ["Who Abused Jane Doe?" May/June and July/August 2002]. . . . After reading David Corwin's account of Jane Doe in the journal Child Maltreatment in 1997, Loftus and Guyer decided to examine his alleged evidence of a recovered memory of sexual abuse. The stakes were high for their work as scholars, teachers, and expert witnesses, because the case was already being used in court as evidence that recovered memories of sexual abuse in childhood are reliable. They began by looking into documents in the public record. They found a public court case of "Jane Doe" who fi[t] the description in Corwin's article, but the court records differed from Corwin's account in significant ways. They eventually met Jane Doe's mother, and became convinced that she had been falsely accused many years before, leading to the loss of custody of her daughter. They decided that this was a story worth pursuing and publishing, ideally in a popular magazine. . . . [A month after Guyer was initially told by his IRB at the U. of Michigan that this work was exempt because it was not "research,"] Guyer received a letter, with no intervening warning that anything was amiss, telling him that his project was not exempt; in fact, that it was assigned a "disapproval" status; and that the IRB was recommending to the Office of the Vice President of Research that he, personally, be reprimanded. . . . Appeals, protests, and exchanges ensued for nearly a year. In March 1999, Guyer received a letter from the new chair of the IRB, Stephen Gebarski, telling him that his work was indeed exempt from IRB consideration because it was not "human subjects research." . . . Encouraged by the green light given to Guyer at Michigan, the two pursued their investigation. Then the University of Washington received an e-mail from Jane Doe, complaining that her privacy was being violated. Considering that David Corwin had published his account of her life and was traveling around the country showing videotapes of Jane at six and seventeen, and considering that no one was making her story public (and hence violating her "privacy") except Jane herself and Corwin, this complaint should have been recognized as a cry from a troubled and vulnerable young woman, and set aside. . . . On September 30, 1999, having given Loftus fifteen minutes' advance notice by telephone, John Slattery of the University of Washington's "Office of Scientific Integrity" arrived in Loftus's office, along with the chair of the psychology department, and seized her files. She asked Slattery what the charges against her were. It took him five weeks to respond, and when he did he had transformed Jane Doe's "privacy" complaint into an investigation of "possible violations of human subjects research." Loftus later learned that lawyers in another state, who had retained Corwin as their defense expert, were trying to subpoena her personnel file in hopes of finding something there to discredit her as an expert witness for the plaintiffs. Because the University, in the face of her objection, was going forward in complying with this improper subpoena, she was forced to retain her own lawyer to stop them. . . . In the spring of 2001, the three-member investigating committee, consisting of two clinicians and one sociologist, concluded that Loftus was not guilty of the charge of "scholarly misconduct." But the two clinicians recommended to the dean, David Hodge, that she nonetheless be reprimanded and subjected to a program of remedial education on professional ethics. They instructed Loftus not to publish data obtained by methods they regarded as inconsistent with the "ethical principals" [sic] of psychologists--that is, the methods of a journalistic investigation. On July 3, 2001, one year and nine months after the University of Washington seized her files, and one month after Loftus won the prestigious William James award from the American Psychological Society for her decades of scientific research . . . Dean Hodge wrote Loftus a letter of exoneration. Her work, he said, "does not constitute research involving human subjects." She did not commit ethical violations or deviate from accepted research practices. She was not guilty of any misconduct. She would not have to undergo remedial education on how to conduct research. But, oh, one more thing: She was not to contact Jane Doe's mother again or interview anyone else involved in the case without advance approval. Such meetings, he said, would constitute "human subjects research requiring Human Subjects Committee approval." . . . "I don't see how you can write anything of value," the great anthropologist Marvin Harris told me years ago, "if you don't offend someone." Skeptical inquiry is endangered when those who are offended or threatened by knowledge are able to silence those who have something valuable to say. Of course, Loftus and Guyer's work challenging the case of Jane Doe should not be restricted to publishing in a semi-popular journal. It should be published as well in a scholarly journal (assuming that it meets the normal standards for evidence). And it is most definitely research on a human subject. Even professors who were publishing literary essays have have been harassed by IRBs.