When research is speech, should it be regulated?

Consider a study that has the following characteristics:

1. The procedure will consist of the researcher telling people things and/or asking them questions, and recording their responses in some fashion.

2. The participants are all legal adults, and are not drawn from any population or setting that compromises their ability to give consent (e.g., prisoners or the severely mentally ill).

3. The participants are all free to decline to participate or to discontinue participating after they start. “Free” means that if they decline or discontinue, they will face no negative consquences (relative to if they had never been invited to participate in the first place) .

4. Everything the researcher says to the participant must be true. The researcher cannot deceive people, and the researcher cannot make promises or commitments that will not be kept in good faith.

5. At the start of any interaction with participants, the researcher will identify him- or herself as such.

6. The researcher will not break any applicable laws.

If an investigator certifies that a study meets these criteria, should the government or a university scrutinize and regulate it any further?

Under the current IRB regulatory system, if a researcher wants to ask people some questions and find out their answers, the researcher has to jump through a whole lot of hoops and wait for various administrative delays. You have to complete pages and pages of paperwork, which includes submitting all of the questions you want to ask; wait a period of time (often weeks or longer) for administrators and IRB members to review the application, which will include somebody reading over the questions and deciding if you are permitted ask them; obtain consent in writing (unless it’s waived, which only happens under narrow and unusual circumstances); and if your inquiry takes longer than a year, go back to your IRB annually to get your permission renewed.

Yet if the researcher’s interactions with participants only involve talking with them, isn’t it just speech (you know, the free kind)? There has been a movement in recent years to clarify that fields like journalism, oral history, and folklore are exempt from IRB oversight. Unfortunately, the debate is being waged on the wrong terms: whether these fields produce “generalizable knowledge,” rather than whether their activities are protected by the First Amendment.

I think it’s fair to ask whether anybody doing #1 above is engaging in protected speech, regardless of whether they are a journalist or a political scientist or anything else; and if it’s speech, whether the government and universities ought to treat it accordingly. (I added nos. 2-6 to address some common and reasonable boundaries on free speech; e.g., we regulate speech to children more carefully; we don’t protect fraud; etc.) I’ll admit there may be something I’m missing out on — some way that a researcher could harm people with questions — besides boring them to death, of course. Sadly, the standard argument for regulation rests upon comparisons to Nazi war crimes. It would be nice to hear the advocates of regulation give a serious response to the free speech and academic freedom issues.