|
Abstract: Several participants in this symposium make a strong case that federal Institutional Review Board ("IRB") regulations stifle valuable scientific research. But even if IRB regulations are perfectly dreadful social policy, it does not follow that they are unconstitutional. Both in this symposium and in a previous article, however, Philip Hamburger makes a sustained argument that IRB regulations are indeed unconstitutional. Specifically, he argues that these regulations constitute a content-based prior restraint on speech in violation of the First Amendment. In Professor Hamburger's view, these constitutional problems exist even though federal IRB regulations are not directly imposed on research institutions by force of law but rather are adopted by these institutions as a condition on receiving federal research funds. Contrary to Professor Hamburger, I do not believe that IRB regulations would constitute a facially unconstitutional infringement of free speech even if directly imposed on research institutions. That these regulations are adopted by research institutions as a condition of receipt of federal funding makes any facial attack on their constitutionality even less tenable. But this does not mean that IRBs are free of constitutional problems. Indeed, although IRB regulations are constitutional on their face and in most of their applications, certain applications pose difficult First Amendment questions. In addition, various applications of these regulations might implicate the constitutional right of thought and inquiry.
|