Are college journalists engaged in “research” on “human subjects” when they conduct interviews or distribute questionnaires?
The answer — “of course not” — seems obvious. But on occasion, excessively risk-averse colleges have insisted that student journalists run through the same pre-approval gantlet that would apply to a psychotherapy student experimenting on patients.
A proposed federal rule would clarify that Institutional Review Boards (“IRBs”) have no jurisdiction to regulate how journalists conduct their interviews or what they decide to publish.
The U.S. Department of Health and Human Services, which sets the standards for what qualifies as federally regulated “research,” is proposing to categorically remove “oral history, journalism, biography, and historical scholarship activities” from the scope of college IRB review.
The new rule was distributed on Sept. 8 as part of a lengthy, multi-agency reassessment of how the government regulates university research that dates back to 2011.
On Sunday, the Student Press Law Center filed comments with HHS explaining why the IRB process was never meant to, and constitutionally cannot, restrict newsgathering:
The notion that a government regulatory body could impose and enforce protocols on the way that journalists conduct their interviews and what they choose to publish cannot be reconciled with the constitutional guarantees of a free and independent press. Indeed, the mere fact that a journalist might be forced to submit her proposed course of inquiry to pre-approval by the very same agency she might be investigating would impose an impermissible “chill” on journalists’ willingness to pursue difficult subjects.
Most institutions already understand journalism to be exempt from IRB review, which is meant for federally regulated research that carries risks of psychological or physical harm to unsuspecting participants. But the SPLC has been urging the federal government to clarify what is already the common understanding, because the IRB process is time-consuming, puts the confidentiality of journalists’ sources at risk, and imposes restrictions incompatible with accepted newsgathering practices.
The public comment period (which has been extended once already) closes on Jan. 6. More than 600 comments have been submitted so far, none opposed to the exclusion for journalism. HHS is under no particular deadline to act on the proposed rule, but it will take at least several months for the agency to digest all of the comments and issue a final as-approved rule incorporating the public’s input.