Academia's Unconstitutional Restraining Order


Over at the Volokh Conspiracy the other day, Jim Lundgren explained a little-known (to me, anyway) routine practice of government-mandated censorship:

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. […]

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.

Whole thing, worth reading in full, here.

UPDATE: Be sure to check the comments for testimonials from people who, unlike me, were familiar with the term "IRB" before this morning.