Unconstitutional Review Board? Considering a First Amendment Challenge to IRB Regulation of Journalistic Research Methods

Abstract

The legacy of First Amendment scholar Margaret Blanchard deeply informs this article. During the latter years of her distinguished career, problems arising from regulations imposed by institutional review boards on scholars working in her field were among her deepest concerns. In her own writing and in public comments recorded by others, Blanchard articulated those concerns passionately and repeatedly. This article considers how IRB regulations on journalistic research methods might fare if subjected to the judicial scrutiny of a First Amendment challenge. Through analysis of relevant case law, the article considers critical elements likely to be at issue. Regardless whether the plaintiff in such a challenge could in fact prevail—given the possibility that case law on conditions imposed in return for government funding could be held to apply to the regulations in question—the analysis suggests that such regulations are at odds with American free-speech traditions and values.