The First Amendment; New Restraints on Research

The First Amendment and a free people. A weekly examination of civil liberties and the media in the United States and around the world. The program has produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University the host of the program is the institute's director Dr. Bernard Rubin. I'm pleased to have with me today professor if he held a solo poor professor of political science at the Massachusetts Institute of Technology the internationally renowned researcher or survey researcher demographer or survey analysts analysts social scientists and so on. Unknown to all who study national development in particular and all of its ramifications. Professor Poole is very much concerned about a First Amendment issue that involves the Department of Health Education and Welfare which arose I guess with the Federal Register reports of August the fourteen thousand nine hundred seventy nine. And if you know you you see

in the announcements of certain of the requirements set for contracts or people who get contracts from the Department of Health Education and Welfare. Certain intrinsic violations of the First Amendment do you not. Yes indeed these regulations if they get finally adopted would impose what we call prior restraint that is to say one would have to go through a censorship board first and get permission before one would be allowed to do research on human subjects. Now that's a clear violation of the Constitution. It's the same issue as the newspaperman of been fighting over for many years right back to the beginning of the whole issue of freedom of the press back to militant for example. The main point that Milton made in his famous tract the area projet Ika which he defended a free press was that newspapers should not be licensed. It is

doesn't mean to say that a newspaper can't violate the law it can't there are all sorts of things that can do that could violate the law but if so then one arrests or prosecutes the people who broke the law. One does not require that they go through a licensing procedure in advance where a sensor looks at the text. Now exactly the same principles apply to social researchers to university professors toward Mary citizens. We have a system in this country under the First Amendment where you can speak talk to anybody as you wish. And again it's possible to violate the law that way I mean you can can commit fraud you can commit libel you can do all sorts of things but nobody is going to censor what you say in advance. You have to commit the crime first. Well what AGW is proposing is a set of regulations that would require in universities that all research be reviewed first. Now let me just play devil's advocate here just a little bit. There are some things that you would agree with on h e w I don't think there's any contention in your

argument that you don't want any human research to be abused in the biomedical field in the medical field in general. You don't want anybody to be used as guinea pigs. That's really not the area of research that you're talking about your quite. I don't wouldn't say content but you're satisfied with 80 W's rights to protect individuals from being used as guinea pigs. Yeah in medical research. That's quite right. This Supreme Court has made the distinction between speech and action. The Constitution makes a distinction between speech and action. In various fields we allow the government to require advance licenses because there are high risks. You can't go out and drive a car without a license one could argue well let people drive in those who kill people with they'll be arrested. But we don't permit that. But we have set up a rather special set of rules regarding speech we've said regarding speech

the dangers of censorship are so great and the possible harms are so relatively minor that not nonexistent that the constitutional principle is one does not set up in advance licensing system regarding speech. Now regarding medical research for example if you're going to give people drugs if you're going to cut them open if you're going to do things like that to them it's perfectly proper that there should be rules that may in many instances require prior review before these things are done. And that's how these regulations got started they started out as regulations on biomedical research requiring that before biomedical research experiments were done on human subjects that the experimenter present his plans to a review board first. But now what AGW is proposing to do is to extend this to the point where if I want to interview you I would have to go through the same process where if I want to go to the library and read what

how my congressman voted I would have to go hire a student do internal research. H e w though in the regulations proposed in the Federal Register suggests a. Alternative A and alternative B. Saying that we can take care of all of these situations because historical research journalism research general social science research work can all be pushed aside almost upon petition or request. What's your view there. Well let's go back into a little bit into the history of the regulations I said the regulations started with biomedical research. They were gradually extended to a borderline area which is you could argue is action or somebody could argue is speech. Certain kinds of psychological experimentation where you manipulate a person in a laboratory you know the manipulation is not does not consist of cutting them open or freedom them a drug but it's still an experiment. And

then they started extending it to social research simply interviews or that sort of thing. And in this process as they drafted these broader and broader regulations people began to protest. They began to be statements of objection. And so in the revision drafted and published in the Federal Register of August 14th that you referred to what ACW did was to make a very broad sweeping claim of its right to have all research using human subjects reviewed and then proceeded to list a series of exemptions of things that they thought perfectly obviously should not be reviewed. And there are two lists alternative lists exemptions of exemptions as you said A or B but under either of them many many things would be subject to prior review prior restraint that. It simply cannot be risked reviewed by the government under the Constitution.

No that's the point your point as I see and I'm very sympathetic to it is that the government should not stick its nose where it is not wanted it should not begin to invade the general university research area or the teaching area especially where there has been no justifiable claim as bio medical research or psychological research or drug induced experimental research that in the kind of work that the average social scientist does if he gets a federal grant it doesn't mean that he should seek permission along the line for any questions that he has for anybody that he hires. You point out the case of a student working for The Harvard Crimson and like you tell that little story I think it is indicative. Well there was a student who was on the editorial board of the Harvard Crimson and he proposed to do as his senior honors paper. A study of how that that editorial board works he would simply observe and write it up and his advisor told him Well of course that sounds like a very interesting paper but you have to submit

that to the what's called institutional review board the censorship board first to see that they approve it that it won't do any harm to your colleagues on the board of editors. Well the student dropped the idea but now he was a student journalist which he was a journalist whether student or not. Suppose you decided to write exactly the same article in exactly the same way as a journalist for his paper or any other paper. Clearly there is no right of the government under the Constitution to decide whether this journalist has the right to write such a paper and whether it will do any harm to the people he writes about. That's absolutely unconstitutional and it's just as unconstitutional if he submits the same papers a senior honors paper would you say that this. Perhaps arose because of administrative elephant Titus. The desire of administrators to extend extend extend. Here they have an I know

authority to give grants. Pretty soon they begin to realize that the grant giving authority is power that they become rather respected in authoritative figures in the American academic world. We petition them for their grants. Having done so they then extend to say exactly the conditions First Amendment notwithstanding that we can have the grants under. That's exactly the way it works. You see AGW know that they do not have the authority to prohibit you or me or our listening audience members from going out and interviewing somebody. We can do it at will. So what do they say. They say well we are going to make grants to a university to Boston University to MIT whatever the university may be. Well as a condition for the grants we make to the university we will require that the university agreed to review all risks are done

by or at that university. And so they are using the funds that they grant to Professor as a way to impose regulations on Professor B. Now Professor B may go out and who isn't applying for any funds from AGW may go out and violate these procedures and there is nothing AGW can do about that except they can take the grant away from Professor eg from the other professor who is doing biomedical research. Now I think that's an absolutely abominable way of trying to enforce the law. You don't enforce. It's a it's an unconstitutional law but whatever it is you don't enforce it by punishing somebody who hasn't violated it because somebody else at the same institution has now where there is distress or where there is some culpability provide a remedy or provide a solution. In this case there is a further extension here of this federal government

activity in that they are setting up a system of review these institutional review boards. And if it wasn't for persons like yourself who are objecting the habit of having an American free universities. Reviews by colleagues and they try to cushion this put a little aspirin on this by saying in effect it is your own colleagues and you choose. Most of the members of the board and so on. Isn't that permission is always very prim and pernicious. It's so easy to accept this. Many of my colleagues and other professors around the country look at these regulations and say well it doesn't really matter because let's say this is we're talking might be talking about a historian he's going to write books about recent presidents alive and dead. Well he says it doesn't really matter because nobody's going to stop me from doing that everybody knows it's my right. So I have to fill out a little form and I get send it to the board and then

a few days later I get it back in the mail and I don't even know it's happened more or less. Well but that's a very pernicious thing surely that means that the distinguished professor is the ones with the stablished reputations and so on will be left alone nobody will bother them. It means that the people who are doing conventional research that nobody objects to will be bothered. But the system will be put into effect. You'll have a system of prior review of censorship. And where will the axe fall it'll fall on the young. It will fall on the men who haven't established a reputation yet. It will fall on the people who want to investigate sensitive subjects I had a colleague at one point who was studying the Boston school busing situation and he was interviewing people involved in that and the institutional review board said to him Oh no you can't do that because some of them are breaking the law there. Disobey the judge's order.

And if you were subpoenaed what you learned in your interviews could be used in court against these people so you might be harming them. Well it's of course perfectly true that they that this could happen. But the question is whether he's in any different situation from a newspaper man to whom this also can happen we've had cases where newspaper men have been subpoenaed because they've interviewed people who've broken the law and the judges in the eternal district attorneys have tried to get the information out of them they refused. That's what a good social scientist would do to samo gone to jail in some of these cases in contempt. It's exactly the same situation as for a newspaper man when you brought this to my attention I suggested that I would alert

editors that I knew of this and and send out a letter of my own suggesting that I wasn't taking a stand but I wanted at that point to convey to solo Poole's concerns one of the heartening things I see in this whole episode is that you have taken it upon yourself. To alert the press to challenge AGW to use it as the facts are the alternate editorial page of the the op ed page of The New York Times to present your your point of view too. To really encourage if not demand reactions from the hierarchy of AGW. How's it going so far. I'd say Very well I the press has begun to recognize that the problem for them. If this precedent should be established I wrote this op ed page article in The New York Times and it was reprinted all over the country various newspapers picked it up and it was reprinted in the congressional record it was inserted there by Congressman Markey from from this area and he has a

very nice statement introducing it he said. Mr. Speaker how would you like it if every time you wanted to ask questions you had to submit them in advance to a review ward for approval. This is the most disturbing thought. But the Department of Health Education and Welfare has taken a provision of the public health service intended to protect human subjects from arms scrupulous research and expanded it to limit free speech itself. So we've gotten quite a response not only from Congressman but from newspapers and of course from academics as we know in the this program is being made in the early part of 1980 the education segment of AGW is going to be separated off. I forgot what the name of the rest of it is. But is this now a. Heartening changer in that our educational concerns can be brought to the right forum rather than to get us mixed up willy nilly throughout the university system those doing medical research and psychiatric research and those doing ordinary social

science research. No I wish I could believe that but I just made that up I was just trying to. Now it's a very reasonable assumption but you see the regulations are for the protection of human subjects of biomedical and behavioral research. And the regulations were drafted with an eye to their appropriateness to biomedical research. But they have been interpreted as applying to any research using a human subject. Now you take that the education part out of the Department of Health Education and Welfare. But you still have these regulations in the medical part so they remain in h e w whatever the it's going to be called and inforced by people who is who is main focus of activity is medical. I notice that colleagues from the various professional associations have pressed claims on behalf of the issues that you raise so obviously there is. There

was almost instantaneous recognition of the situation. Does that does that bode well for the cause. Yes that also bodes very well we have a very strong letter was sent signed by about a dozen presidents of major academic associations Jack pelvis and the president of the American Council of education. I won't give all the names but the American Anthropological Association the American Political Science Association the American Sociological Association the American Historical Association the Association of American universities and so on about a dozen organizations the presidents all signed a very strong protest. Now since there are valid First Amendment issues here and issues that involve the way we teach and our rights as teachers and as researchers even if AGW draws in its horns or says we we get the point. Isn't it time for the issue to be joined at a much

more investigative level of consideration where people from these various organizations would say by golly we do have a problem. We're going to have to forestall we're going to make our own guidelines rather than wait for the next government involvement or interference. Yes many of the of the genuine problems that exist in any professional activity are best handled by a voluntary code of ethics of the profession which although it may not have the force of law has a very powerful effect on members of a profession. Lawyers doctors engineers are all very concerned about their reputations as members of their profession. And when that when the profession itself adopts a code as to how one proceeds the Better Business Bureau has to be another example people. People pay attention and for example the American Association for

Public Opinion Research has such a code it has code as to how one conducts public opinion polls for example of one violation of this code would be to go out as a as a salesman and ring a doorbell and say I'm a Polder and I'd like to ask you a few questions and when you got in then you proceed to sell something try to sell them a product. That's a violation of the code. Another violation of the code is to breach the confidence of the person you interview that's a very important one. You're not allowed to go out and then tell somebody else what John Doe told you. And anybody who did that would immediately lose his standing in the public opinion polling profession and you wouldn't get any business. I'm curious about another aspect of all of this. It's all a pool and that is you saw the issue and joined into two battle almost immediately. But you have a long history

of research behind you and were trained in the. In the older way I may say before contracts determined everything on the university campus or so it seems some days I wonder if your own view now as to what the attitude of academics is or likely the prevailing view is of those who were trained more recently in the last decade or so who have been taught right from incipient growth as academics that these grants grants grants determine everything everything everything with a B as brave or as forthright. Well I think you've got a point but I really don't think it's primarily a matter of age. There are some thing of tradition yes there is that you have a real point. That is a great deal of research that is done these days is supported by government. And it's quite natural that people who are expecting

grants even if they don't have them now are not going to put a chip on their shoulder and make enemies in the bureaucratic organizations with which they want to deal. And there's a lot of that in universities. I wish I could say that all academics have seen the point and risen as one man that's not true. A good many of them. Recognize that there the harm can be done by research and it can and they simply then jump to the conclusion well if harm can be done somebody ought to control it well. If we worked on that principle then nothing that went on in the family would be exempt from outside control because parents can do harm to children and children can do harm to parents. There would be no such thing as free speech. We have to balance the considerations of potential harm against the importance of maintaining an area of freedom. And that's what the First Amendment has done. It set up an area in which we recognized that there would

be a rousing obstreperous debate and that some people would be annoyed by it offended by it. But that was better than having a censorship board. But not everybody sees it that way there are always people who are in favor of censorship it's not a new issue. One of the things that you pointed out I think to me is that there are other vacations for example on grand sman ship so many researchers carefully check the Federal advertisements as to what they're looking for by way of research. And a great many federal administrator is instead administrator is are devising research plans as if they were academics on this that or the other thing especially in the social science field. Then academics apply for those grants and try to meet the testings of those grants. Has there been. And I don't want to exaggerate this but has there been any inversion of the of the creative process starting with the professor thinking about what his problem is and then trying to figure out how he can accomplish His research to

another process where he begins to see what is around and how much he can adapt himself to meeting the demands of that particular inquiry from a government agency. Research has to be of many kinds. Think of what we call an educational institution we call it a university and universal university means it incorporates all sorts of different things. And I'm by no means a opposed to applied research I think it's very fine that I'm not I'm not talking about Applied Research I'm just saying that the research question or the research subject comes to the research rather than starting with the research on this but I wouldn't oppose that I think it's perfectly proper that people who have practical problems whether in business or government go out and look for somebody who is ready and interested in helping them solve their problem. But I also want to see a situation where there are some people who are approaching problems in a quite independent way. Not doing research that somebody else wants done and

what would happen if we got this kind of regulation is would be the stifling of the independent person the person who is asking a challenging and of and offensive question. We've got to keep preserve that too. And that doesn't mean that we have to denigrate applied research that meets a very practical need of some operator. Well I know full well your interest in First Amendment issues before an issue came up like this when you were one of the founding fellows of the Institute for democratic communication. So I want to stress the fact that you are not pushing on any selfish basis but you're rather pushing for the profession and I am delighted that the profession is pushing with you because the hardest kinds of groups to move usually other very groups who rallied which rallied to your support. I think you may agree with that I agree there is none Israel to the nth degree. What what do you think will happen now. What will AGW do.

Well there were many protests against the draft regulations they were taken back to be reviewed in the light of these comments. In practice they could if they wished to produce the final regulations at any moment. But what I suspect will happen is that they will drag their feet because in bureaucracies you delay if you've got a difficult problem. And so it may be many months before we know what the final regulations look at look like and when we do see them we may find that the problem has been solved or we may find we've got years of fighting in the courts ahead of us. But years of fighting is not something we look forward to and we hope that public opinion in this case this is very rare that the Federal Register engender such a big battle. It has happened on many occasions but it's not too usual. If you notice all the people I am absolutely delighted that you brought this to our attention because it really takes somebody in the catbird seat of doing this kind of research.

And with the prestige that you have to bring to bear to make us all see the issues in a dramatic way and also someone who can write someone who can write effectively. So on behalf of the program I thank you very much if you will the soul of full professor of political science at MIT for this edition. Bernard Reuben. The First Amendment and a free people a weekly examination of civil liberties and the media in the United States and around the world. The engineer for this broadcast was Margo Garrison. The program is produced by Greg Fitzgerald. This broadcast has produced cooperatively by WGBH Boston and the Institute for democratic communication. F. Boston University which are solely responsible for its content. This is the public radio cooperative.