Institutional review boards and the constitution

Northwestern University Law Review

Volumn 101, Issue 2, 2007, Pages 493-561

  Weinstein, James ^a  

^a ARIZONA STATE UNIVERSITY   (United States)

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EID: 34547931425     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (489)

1. The core IRB regulations are imposed as a condition of federal research funding by the so called "Common Rule," an identically worded set of regulations adopted by seventeen federal agencies. The Common Rule requires any institution receiving federal research funds to establish one or more IRBs, consisting of at least five members, at least one of whom is not affiliated with the institution. See 45 C.F.R. §§46.103(b)(2), 46.107(a)(d) (2005).
2. Any researcher wishing to use human subjects on a project supported by federal funds must obtain prior approval from an IRB. 45 C.F.R. § 46.109 (2005).
3. Requirements for IRB approval include that: (1) the risks to subjects are minimized; (2) risks to subjects are reasonable in relation to anticipated benefits; (3) selection of subjects is equitable; (4) informed consent will be sought and documented; and (5) there are adequate provisions for protection of the privacy of the subjects and maintenance of the confidentiality of the data. 45 C.F.R. § 46.111 (2005).
4. Philip Hamburger, The New Censorship: Institutional Review Boards, 2004 SUP. CT. REV. 271.
5. The nomenclature "biomedical" obviously does not perfectly describe all research involving human subjects having no significant communicative elements, just as the term "social science" does not precisely correspond to all such research having significant communicative elements. Some biomedical research subject to IRB regulation might involve a considerable amount of verbal or written communication, and it is possible (though difficult) to imagine social science research involving human subjects with no significant communicative elements. The bigger imperfection with the social science nomenclature is that it is underinclusive: humanities and legal research also sometimes involve use of surveys and questionnaires. Thus, as used in this article, the term "biomedical research" is shorthand for all research, regardless of discipline, that has no significant expressive elements, while the term "social science research" is shorthand for all research, regardless of discipline, having significant communicative elements.
6. See infra text accompanying notes 21-24.
7. It possible that direct imposition of IRB regulations on research institutions would violate these institutions' right of academic freedom. See generally Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (noting that "[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned" and that therefore that freedom is "a special concern of the First Amendment"). Academic freedom, however, is properly understood as an institutional rather than as an individual right.
8. See Robert Post, The Structure of Academic Freedom, in ACADEMIC FREEDOM AFTER SEPTEMBER 11, at 64 (Beshara Doumani ed., 2006).
9. See also infra note 42. On this view institutions can waive their right to academic freedom as a condition of funding without violating any rights sounding in academic freedom of their employees. For this reason, I shall pretermit any detailed discussion of this very uncertain area of constitutional law and instead focus on individual rights that might be implicated by IRB regulations. Such a focus promises to be more fruitful because, unlike its own rights, an institution cannot waive the individual constitutional rights of its employees.
10. See infra text accompanying notes 210-212.
11. See infra text accompanying notes 253-256.
12. JAMES WEINSTEIN, HATE SPEECH, PORNOGRAPHY AND THE RADICAL ATTACK ON FREE SPEECH DOCTRINE 31-32 (1999).
13. Id. at 32.
14. See. e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (observing that there are "certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem").
15. See, e.g., United States v. Eichman, 496 U.S. 310, 315 (1990) (referring to flag burning engaged in as a means of political protest as "expressive conduct").
16. See Virginia v. Hicks, 539 U.S. 113, 123 (2003) (stating that "it is Hicks' nonexpressive conduct-his entry in violation of the notice-barment rule - not his speech, for which he is punished as a trespasser").
17. See, e.g., United States v. O'Brien, 391 U.S. 367, 376-77 (1968).
18. Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993) (explaining that "a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment"). As discussed below, the one narrow exception to the rule that nonexpressive conduct is entitled to no First Amendment protection is nonexpressive conduct that is an essential precondition of protected speech.
19. See infra notes 21-24 and accompanying text.
20. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).
21. Texas v. Johnson, 491 U.S. 397, 404 (1987) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)).
22. Johnson, 491 U.S. 397 (flag burning);
23. O'Brien, 391 U.S. at 369 (draft card burning).
24. City of Erie v. Pap's A.M., 529 U.S. 277 (2000).
25. A recent Supreme Court decision, Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 S. Ct. 1297 (2006), demonstrates that typical biomedical research would not be considered expressive conduct. In that case, the Court rejected the claim that certain law schools' refusal to allow military recruiters access to their students because of disagreement with the armed service's policy on homosexuals in the military constituted expressive conduct.
26. Id. at 1311. The Court therefore held that the Solomon Amendment, a federal law that required any institution of higher learning receiving federal funds to provide equal access to military recruiters, did not implicate the free speech rights of law schools wanting to refuse such access.
27. Id. at 1310. The Court found that "the Solomon Amendment regulates conduct, not speech" and emphasized that it has "extended First Amendment protection only to conduct that is inherently expressive."
28. Id. at 1307, 1310. The Court observed that "[u]nlike flag burning, the conduct regulated by the Solomon Amendment is not inherently expressive."
29. Id. at 1310. The Court continued: An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all of the law school's interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else. The expressive component of a law school's actions is not created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O'Brien. If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into "speech" simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O'Brien to determine whether the Tax Code violates the First Amendment. Neither O 'Brien nor its progeny supports such a result.
30. Id. at 1311. Ordinary biomedical research is even less "inherently expressive" than is the exclusion of military recruiters from a law school due to disagreement with an armed service's policy. Irrespective of whether an observer would understand the message, the exclusion of military recruiters, unlike ordinary biomedical research, was at least meant to convey a message. Thus ordinary biomedical research is a fortiori not expressive conduct. FAIR further demonstrates, moreover, that even biomedical research engaged in as a form of protest would likely not qualify as expressive conduct. Suppose a scientist were to engage in stem cell research in order to protest the ban on federal support for such research. Like the law school excluding military recruiters because of a disagreement with military policy or a person refusing to pay income tax because of his disapproval of the IRS, in the absence of some "explanatory speech" an observer would have no way of knowing that this scientist was engaging in his research as a means of protest rather than as an ordinary research project. An observer who witnessed a scientist notoriously flouting an outright ban on a type of research would arguably have much better reason to assume that the researcher was, at least in part, engaged in a protest against the ban even without some verbal or written explanation. But this would be true of most any public violation of a law and therefore would also not be "inherently expressive." In any event, as the Court's example of the person refusing to pay his taxes as a form of protest against the IRS shows, the Court is steadfastly opposed to the notion that public violation of a law is sufficient to render such activity expressive conduct.
31. Dana Remus Irwin, Freedom of Thought: The First Amendment and the Scientific Method, 2005 WIS. L. REV. 1479, 1499;
32. accord James R. Ferguson, Scientific Inquiry and the First Amendment, 64 CORNELL L. REV. 639, 649 (1979) (claiming that scientific research "is not 'speech' at all" but "more in the nature of 'conduct'");
33. Gary L. Francione, Experimentation and the Marketplace Theory of the First Amendment, 136 U. PA. L. REV. 417, 422 (stating that "there is nothing inherent in the experimental process that allows that process to be characterized as 'expression' or 'expressive conduct'");
34. Barry P. McDonald, Government Regulation or Other "Abridgments " of Scientific Research: The Proper Scope of Judicial Review Under the First Amendment, 54 EMORY L.J. 979, 993-94 (2005) (observing that at least with respect to research in the natural as opposed to social sciences, "it is often difficult to characterize such activities as being expressive or communicative[,]" and concluding therefore that such activity would be classified as "nonexpressive conduct").
35. See, e.g., Ferguson, supra note 20, at 644-54;
36. McDonald, supra note 20, at 1034-69;
37. John A. Robertson, The Scientist's Right to Research: A Constitutional Analysis, 51 S. CAL. L. REV. 1203, 1217-18 (1977).
38. Robertson, supra note 21, at 1217-18;
39. see also id. at 1216 ("If the first amendment's purpose of assuring a free flow of information for public and private decisionmaking is to be served, then all aspects of creating, gathering, disseminating, and receiving information must be protected."). As discussed in Part II, below, contrary to Professor Robertson's premise, and as is confirmed by the very limited protection actually afforded conduct that is a "necessary precondition of speech," the commitment to "free trade in the dissemination of ideas and information" is not a core free speech value.
40. Zemel v. Rusk, 381 U.S. 1, 16-17 (1965).
41. See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984) (quoting Zemel, 381 U.S. at 16-17);
42. see also infra notes 29-30 and accompanying text.
43. For instance, in Buckley v. Valeo, 424 U.S. 1 (1976), the Court extended First Amendment protection to expenditure of money used to express views about political candidates or other matters of public concern. The Court found that a federal law prohibiting individuals from spending more than $1000 per year "relative to a clearly identified candidate" imposed "direct and substantial restraints on the quantity of political speech . . . . at the 'core of our electoral process and of the First Amendment free-doms.'"
44. Id. at 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968)).
45. Similarly, in Globe Newspapers v. Superior Court, the Court recognized a right of the press to access to criminal proceedings so "that the individual citizen can effectively participate and contribute to our republican system of self government." 457 U.S. 596, 604 (1982).
46. Cf. Robertson, supra note 21, at 1216 ("If the first amendment's purpose of assuring a free flow of information for public and private decisionmaking is to be served, then all aspects of creating, gathering, disseminating, and receiving information must be protected.").
47. See infra notes 106-12, 115-17 and accompanying text. Because the lack of First Amendment protection for ordinary biomedical research can be demonstrated by a fairly straightforward application of free speech doctrine without resort to discussion of underlying values, I postpone an exploration of the values underlying free speech doctrine until Part II, below. In contrast to IRB regulation of biomedical research, the application of IRB regulations to social science research raises extremely difficult and novel First Amendment questions which cannot be answered by a mechanical application of doctrine but require instead an analysis informed by an understanding of the goals and purposes served by this doctrine.
48. See infra notes 29-30 and accompanying text.
49. Houchins v. KQED, Inc., 438 U.S. 1 (1978).
50. Zemel v. Rusk, 381 U.S. 1 (1965).
51. In addition, as discussed below, this concern, although more central than the pursuit of knowledge and truth in the marketplace of ideas or information needed for private decisonmaking, is also not a core free speech value. See infra notes 103-05 and accompanying text.
52. 408 U.S. 665 (1972).
53. See, e.g., Robertson, supra note 21, at 1228-40.
54. Branzburg, 408 U.S. at 680.
55. Id. at 683 (quoting Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937)).
56. Id. at 707-08.
57. Id. at 710 (Powell, J., concurring).
58. See In re Grand Jury Subpoena (Miller), 397 F.3d 964, 971 (D.C. Cir. 2005) (citation omitted) ("Justice Powell's concurring opinion was not the opinion of a justice who refused to join the majority. He joined the majority by its terms, rejecting none of Justice White's reasoning on behalf of the major-ity. He wrote separately 'to emphasize' what seemed to him 'to be the limited nature of the Court's holding.' Justice White's opinion is not a plurality opinion of four justices joined by a separate Justice Powell to create a majority, it is the opinion of the majority of the Court. As such it is authoritative precedent. It says what it says. It rejects the privilege asserted by appellants.");
59. In re Grand Jury Proceedings (Scarce), 5 F.3d 397, 400 (9th Cir. 1993) ("It is important to note that Justice White's opinion is not a plurality opinion. Although Justice Powell wrote a separate concurrence, he also signed Justice White's opinion, providing the fifth vote necessary to establish it as the majority opinion of the court.").
60. But see McKoy v. North Carolina, 494 U.S. 433, 462-63 n.3 (1990) (Scalia, J., dissenting) (arguing that where an "individual Justice is [] needed for the majority," then the Court's "opinion is not a majority opinion except to the extent that it accords with his views").
61. KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 1479 (15th ed. 2004).
62. But see In re Grand Jury Subpoena (Miller), 297 F.3d 964;
63. In re Grand Jury Proceedings (Scarce), 5 F.3d 397. And contrary to commentators and lower court decisions that have relied on Justice Powell's balancing test, the Court has subsequently referred to Branzburg as within a line of decisions "holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news."
64. Cohen v. Cowles Media Co., 501 U.S. 663,669 (1991).
65. See infra notes 134-35 and accompanying text.
66. For this reason, to the extent that IRBs regulate biomedical research, Hamburger's comparison of IRBs to a hypothetical Newspaper Review Board is inapt. Hamburger, supra note 2, at 307-08. The analogy is much more telling, however, with respect to IRB regulation of social science research using traditional interviewing methods such as surveys, questionnaires and oral questions.
67. See infra notes 126-40 and accompanying text.
68. Although biomedical research is not itself sufficiently communicative or sufficiently related to core First Amendment activity to be considered speech within the ambit of the First Amendment, direct application of IRB regulations to biomedical research by force of law might arguably violate the constitutional right of academic freedom. See, e.g., Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967);
69. Sweezy v. New Hampshire, 354 U.S. 234, 261 (1957) (Frankfurter, J., concurring). But even if imposition of IRB regulations by force of law would violate the research institution's constitutional right of academic freedom, imposition of these regulations as a condition of receipt of federal research funds would not. This is because academic freedom is an institutional right, not a right of the individual researchers, and thus can be waived by the institution. As Robert Post has explained: [Academic freedom] may be asserted in particular cases by individual faculty, but it does not protect interests that are defined by reference to the perspectives and horizons of individual professors. Rights of academic freedom are instead designed to facilitate the professorial self-regulation of the professoriat, so that academic freedom safeguards interests that are constituted by the perspective and horizon of the corporate body of the faculty. The function of academic freedom is not to liberate individual professors from all forms of institutional regulation, but to ensure that faculty within the university are free to engage in the professionally competent forms of inquiry and teaching that are necessary for the realization of the social purposes of the university.
70. Post, supra note 5, at 64.
71. Thus in the view of the Association of American University Professors ("AAUP"), an organization dedicated to protecting academic freedom, because "scholars have [no] right to be provided with federal funds to support their research without providing assurances that they will protect their human subject," then "plainly no academic freedom is violated by the imposition of that condition on federal research funds." Protecting Human Beings: Institutional Review Boards and Social Science Research, ACADEME, May-June 2001, at 55, 58-59.
72. A more recent AAUP report, in contrast, describes the IRB procedures as an "obvious potential threat to academic freedom." Research on Human Subjects: Academic Freedom and the Institutional Review Board, ACADEME, Sept.-Oct. 2006, at 95, 96 [hereinafter Research on Human Subjects]. The focus of this report, however, is not on IRB application to biomedical research, but rather on IRB regulation of "research whose methodology consists entirely in collecting data by surveys, conducting interviews, or observing behavior in public places," which the report recommends be exempt from IRB review.
73. Id. at 97. As discussed in detail below, unlike IRB regulation of typical biomedical research, application of IRB regulation to social science research consisting entirely of interviews and surveys raises substantial free speech issues.
74. See text accompanying infra notes 126-40. The AAUP report notes Professor Hamburger's argument that IRB regulations constitute an unconstitutional prior restraint, but takes no position on this issue.
75. See Research on Human Subjects, supra, at 95.
76. Professor Hamburger erroneously states that even if research is deemed nonexpressive conduct, it will be subject to the First Amendment scrutiny applied by the Court in United States v. O'Brien, 391 U.S. 367, 377 (1968).
77. But as O'Brien itself emphasized, only activity sufficiently expressive to be classified as "expressive conduct" is entitled to this modest level of scrutiny. See id. at 376 (stating that "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea[,]" but assuming that the "communicative element" in the draft card burning at issue was "sufficient to bring into play the First Amendment").
78. See supra note 14 and accompanying text. As we have seen, biomedical research is not sufficiently expressive to be considered expressive conduct.
79. The "content discrimination" that Hamburger identifies is threefold: (1) that IRB regulations apply to "research at research institutions . . . while simultaneously leaving the same conduct unconstrained if done not as part of such research" and "thereby discriminate against inquiry and publication"; (2) that in defining research as a "systematic investigation" designed to produce "generalizable knowledge," the regulations "discriminate against those who pursue the modern, empirical conception of knowledge"; and (3) in requiring IRBs to evaluate the risks and benefits of research "the regulations thereby subject methodology to a process that inevitably discriminates against unconventional or unpopular approaches." Hamburger, supra note 2, at 307-10.
80. Hamburger argues that in discriminating in these ways, the IRB regulations "target speech." Id. at 306. This argument is at war with the basic premise that activity classified as nonexpressive conduct is not sufficiently expressive to warrant any First Amendment scrutiny. The claim that IRB regulation unconstitutionally discriminates against inquiry and publication reduces essentially to the argument considered and rejected above in Part I.B that because research often leads to publication it should be specially protected by the First Amendment as a "necessary precondition of speech." The only respect in which Hamburger's argument differs from a straight ahead "necessary precondition" argument is the claim that the regulation not only burdens research but discriminates against this activity. But unless an activity is within the ambit of First Amendment coverage, which, as we have seen, is not the case with respect to biomedical research, no First Amendment issue is raised by discrimination against this activity.
81. Cf. Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575 (1983) (holding that a tax that singled out the press for special treatment violated the First Amendment). For the same reason, the "discrimination" against those "who pursue the modern, empirical conception of knowledge" does not raise a First Amendment issue: Because biomedical research is nonexpressive conduct, the government has virtual carte blanche to define the scope of the activity it wishes to regulate without running afoul of the prohibition against content discrimination. 45 Arguably, even when regulating nonexpressive conduct, the government might be constitutionally prohibited from defining the regulated subject matter according to some criterion that the First Amendment forbids, such as political ideology.
82. See Wisconsin v. Mitchell, 508 U.S. 476, 484-86 (1993) (suggesting that a law regulating nonexpressive conduct might violate the First Amendment if it were justified solely as punishing a defendant for holding "abstract beliefs");
83. see also James Weinstein, Hate Crime and Punishment: A Comment on Wisconsin v. Mitchell, 73 OR. L. REV. 345, 348-60 (1994). Thus, a law that subjected only research by members of the Communist Party to IRB scrutiny would probably violate the First Amendment. It would be fanciful, however, to suppose that in applying IRB regulations only to research at research institutions, the federal government was motivated by a desire to suppress publication; or that in defining research to mean "systematic investigation" designed to produce "generalizable knowledge" it was expressing hostility towards the "modern, empirical conception of knowledge"; or that its purpose in requiring IRBs to evaluate the risks and benefits of research was to suppress "unconventional or unpopular" research methodologies.
84. Hamburger, supra note 2, at 308-10. Indeed, one of the instances of "discrimination" that Hamburger decries is actually a speech protective limitation on the scope of the IRB regulations. Thus the limitation to "systematic investigation" designed to produce "generalizable knowledge" exempts interaction between researchers and their students in the classroom.
85. See National Science Foundation, Frequently Asked Questions and Vignettes, Interpreting the Common Rule for the Protection of Human Subjects for Behavioral and Social Science Research, http://nsf.gov/bfa/dias/policy/hsfaqs. jsp (last visited Nov. 9, 2006).
86. See McDonald, supra note 20, at 994-95 (observing that "whether a social scientist is conducting a survey via the use of a questionnaire or a child psychologist is interviewing children as part of an experiment, such empirical methods of investigation will often have a significant expressive component").
87. Cf. id. ("To the extent the regulation of such research can reasonably be characterized as a regulation of 'expressive or communicative activities' because of the research's significant characteristics in this regard, it would most likely be subject to First Amendment scrutiny.").
88. As will be discussed below, although facially speech neutral, application of IRB regulations will often focus on the communicative impact of the speech and thus are content-based as applied. See infra text accompanying notes 173-175.
89. However, because there are also many content-neutral applications of IRB regulations to social science research, see infra notes 143-47 and accompanying text, it is useful as a first step in the analysis to consider IRB regulations as a law of general applicability that incidentally burdens speech. Another reason for applying this framework, at least as an initial cut at the problem, is that even in cases involving a content-based application of a law or a speech-neutral law of general applicability, the Court continues to attach significance to the fact that the law is one of general applicability.
90. See FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990);
91. infra notes 73-83 and accompanying text (discussing Trial Lawyers Ass n).
92. 391 U.S. 367(1968).
93. Id. at 376.
94. See, e.g., Turner Broad. Sys. v. FCC, 520 U.S. 180, 189 (1997).
95. O'Brien, 391 U.S. at 377-82.
96. See, e.g., City of Erie v. Pap's A.M., 529 U.S. 277, 292 (2000);
97. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567 (1991);
98. United States v. Albertini, 472 U.S. 675, 688-89 (1985);
99. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294, 298-99 (1984).
100. 478 U.S. 697 (1986).
101. Id. at 707.
102. Id. at 706.
103. Id.
104. Id. at 705.
105. See, e.g., Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 S. Ct. 1297 (2006);
106. FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990);
107. Cohen v. Cowles Media Co., 501 U.S. 663 (1991).
108. It could be argued, however, that as in O'Brien and unlike in Arcara, the activity that "dr[aws] the legal remedy" of IRB jurisdiction is inextricably intertwined with the expressive element. Just as it was impossible for O'Brien to burn his draft card without destroying or altering it in violation of the statute, it would typically be impossible for social scientists to engage in research without using human subjects. In contrast, it was quite possible for the adult book store owner to sell books without allowing his premises to be used for illegal sex acts. Given the impossibility of separating the speech and nonspeech elements from the activities that bring social science researchers under the jurisdiction of the RB, application of IRB regulations to this activity should, the argument continues, be subjected to intermediate scrutiny. While the preceding argument does distinguish Arcara from O'Brien and thus offers some support for applying intermediate scrutiny to IRB regulation of social science research, it is not by any means conclusive. Except in cases in which the speech element is easily severable from the regulated conduct, such an approach would commit the Court to applying First Amendment scrutiny to the application of any law that incidentally burdened any type of activity that could conceivably be characterized as speech within the meaning of the First Amendment. For instance, under this approach the application of the antitrust laws to two competitors who share with each other the prices at which they plan to sell their products would be subject to First Amendment scrutiny, for here the expressive activity (communication of the information) is, like the draft card burning in O 'Brien, inseparable from the activity that "drew the legal remedy." The same would be true of anyone providing inside information or filing a proxy statement in violation of the securities laws, or of a physician who commits malpractice by giving erroneous medical advice to a patient. It is certain, however, that the Court would not apply First Amendment scrutiny to applications of generally applicable laws such as these. See, e.g., FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990);
109. see also infra notes 73-83 and accompanying text (discussing Trial Lawyers Association). In addition, whether speech is inextricably bound up with nonexpressive conduct is a slippery concept not easily susceptible to judicial administration.
110. What is certain is that the criteria for overcoming this presumption against First Amendment scrutiny cannot be captured by any one single factor, particularly one as mechanistic as whether the activity that "drew the legal remedy" is inextricably bound up with conduct with a significant expressive element. Perhaps the Court in Arcara was groping towards a distinction between symbolic conduct, such as the draft card and flag burning as a means of political protest, on the one hand, and speech that is an essential part of a larger course of conduct, such as the economic boycott involved in Trial Lawyers Association, 493 U.S. at 411.
111. Given the strict requirement for qualification as symbolic conduct, see supra notes 16, 19 and accompanying text, the Court can bestow the modest First Amendment protection afforded by the O 'Brien test on all such expression without opening the "floodgates" that would occur if it offered similar protection to all expression burdened by the application of laws of general applicability.
112. Accord Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175, 1208 (1996) ("If one finds that the distinction between acts that facilitate speech and acts that are intertwined with speech is an inadequate basis upon which to build an incidental burden doctrine, one response would be to apply O 'Brien scrutiny to both categories. But if that were done, the domain of O'Brien would be too broad, because a virtually limitless number of regulable activities can be 'communicative' (in the sense of intertwined with or facilitative of speech).").
113. Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46, 105 (1987);
114. accord Dorf, supra note 61, at 1208 (noting that "a virtually limitless number of regulable activities can be 'communicative' (in the sense of intertwined with or facilitative of speech)");
115. Frederick Schauer, Cuban Cigars, Cuban Books, and the Problem of Incidental Restrictions on Communications, 26 WM. & MARY L. REV. 779, 784 (1985) ("To be concerned significantly, in a constitutional sense, with incidental effects is to be committed to judicial scrutiny of an enormous range of government decisions.").
116. For a helpful discussion of the law of incidental burdens as it relates to scientific research, see McDonald, supra note 20, at 1034-69.
117. Stone, supra note 62, at 108;
118. accord Schauer, supra note 62, at 789 ("Under most circumstances a burden on speech incidental to a generally applicable regulation not focused on communication will be tested against standards not significantly more stringent than minimal rationality. . . ."). As the Court stated in holding that application of the National Labor Relations Act's requirement to engage in collective bargaining with labor organizations to press organizations did not violate the First Amendment: "The business of the Associated Press is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws.
119. " Associated Press v. NLRB, 301 U.S. 103, 132 (1937);
120. see also Cowles Media Co., 501 U.S. at 669-70 (referring to the "well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news").
121. Justices Antonin Scalia and Clarence Thomas would make this presumption irrebuttable. See City of Erie v. Pap's A.M., 529 U.S. 277, 307-08 (2000) (Scalia, J., concurring, joined by Thomas, J.) (quoting Barnes v. Glen Theatre, Inc., 501 U.S. 560, 572 (1991) (Scalia, J., concurring) (stating that "as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all.")). As Justice Scalia explained in an earlier case, this approach "ensures that the government does not act to suppress communication, without requiring that all conduct-restricting regulation (which means in effect all regulation) survive an enhanced level of scrutiny." Barnes, 501 U.S. at 578-79.
122. Stone, supra note 62, at 59. Professor Stone is speaking here of all content-neutral regulations, including "time, place and manner" regulations of speech, not just of incidental burdens imposed on speech by laws of general applicability.
123. As I have explained in a previous article, a more extensive study of the Court's decisions dealing with content-neutral regulations of speech, despite
124. see also Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "SituationAltering Utterances, " and Uncharted Zones, 90 CORNELL L. REV. 1277, 1338-39 (2005) (arguing that in assessing the constitutionality of content-based application of speech neutral laws of generally applicability, courts should consider, among other factors, "the value of the speech").
125. 458 U.S. 886 (1982).
126. Id. at 889.
127. Id. at 907-11.
128. Id. at 912.
129. Id at 913.
130. Id. at 913 (quoting Carey v. Brown, 447 U.S. 455, 467 (1980)).
131. The Court explained that such activity is '"more than self-expression; it is the essence of self-government.'" Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)).
132. 493 U.S. 411 (1990).
133. Id. at 414.
134. Id. at 421.
135. Id. at 420 (quoting Superior Court Trial Lawyers Ass'n v. FTC, 856 F.2d 226, 248 (D.C. Cir. 1988)).
136. Id. at 421.
137. Id. at 431.
138. Id. at 431.
139. Id. at 431-32.
140. Id.
141. For a useful discussion emphasizing the distinction between content-neutral and content-based applications of speech neutral laws, see Volokh, supra note 66, at 1284 (observing that "a generally applicable law is content-based as applied - when speech triggers the law because of the harms that may flow from what the speech says").
142. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (quoting Carey v. Brown, 447 U.S. 455, 467 (1980)).
143. In contrast, City of Erie v. Pap's A.M, 529 U.S. 277 (2000), suggests that incidental burdens on even marginal free speech values imposed by laws of general applicability might trigger some modest level of First Amendment scrutiny. That case upheld against First Amendment challenge a ban on public nudity as applied against erotic nude dancing in "nude dancing establishments," but only after subjecting the ban to the intermediate scrutiny set forth in O'Brien.
144. Id. at 282-302.
145. The Court noted that although "[b]eing 'in a state of nudity' is not an inherently expressive condition," the erotic nude dancing at issue "is expressive conduct, although . . . only within the outer ambit of the First Amendment's protection." Id. at 289.
146. Note, however, that unlike the expressive elements of social science research, erotic nude dancing is an example of "symbolic conduct," a category of expression that I have suggested that the Court has treated with more First Amendment solicitude than other forms of conduct containing expressive elements. See supra note 61.
147. In attempt to reconcile the two holdings, the Court in Trial Lawyers Association explained that it was "of course, clear that the association's efforts to publicize the boycott, to explain the merits of its cause, and to lobby District officials to enact favorable legislation-like similar activities in Claiborne Hardware - were activities that were fully protected by the First Amendment," and that the only activity prohibited by the FTC's order was "a concerted refusal by [the association's lawyers] to accept any further assignments until they receive an increase in their compensation." Trial Lawyers Ass 'n, 493 U.S. at 426. It is far from "clear," however, that one has a First Amendment right to publicize an illegal course of activity. But even if the Trial Lawyers Association boycottera had a right to engage in all of the communicative activities peripheral to the concerted refusal to deal itself, they did not share the First Amendment right of the boycotters in Claiborne Hardware to engage in the expressive and associational elements constituting the concerted activity.
148. 458 U.S. at 913.
149. SULLIVAN & GUNTHER, supra note 39, at 987.
150. Mills v. Alabama, 384 U.S. 214, 218 (1966) ("Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.");
151. see also Claiborne Hardware, 458 U.S. at 913 (explaining that because "speech concerning public affairs . . . is the essence of selfgovernment," such expression "has always rested on the highest rung of the hierarchy of First Amendment values" (citations omitted));
152. Roth v. United States, 354 U.S. 476, 484 (1957) ("The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.");
153. Stromberg v. California, 283 U.S. 359, 369 (1931) ("The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.");
154. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) ("Those who won our independence believed that . . . public discussion is a political duty; and that this should be a fundamental principle of the American government.");
155. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 410-11 (2000) (Thomas, J., dissenting) ("I begin with a proposition that ought to be unassailable: Political speech is the primary object of First Amendment protection.");
156. Cass R. Sunstein, Half-Truths of the First Amendment, 1993 U. CHI. LEGAL F. 25, 25 (observing that "whatever else it is about, the First Amendment is at least partly designed to create a well-functioning deliberative democracy.").
157. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988);
158. Cohen v. California, 403 U.S. 15, 22 (1971);
159. Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 HARV. L. REV. 601 (1990).
160. Masses Publ'g Co. v. Patten, 244 F. 535, 540 (S.D.N.Y. 1917).
161. As James Madison explained at the founding of this Nation, under our constitutional scheme "[t]he people, not the government, posses[s] the absolute sovereignty," James Madison, Virginia Resolutions, in 4 JONATHAN ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 569-70 (1836), and therefore "the censorial power is in the people over the Government, and not in the Government over the people." 4 ANNALS OF CONG. 934 (1794).
162. RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 200 (1996).
163. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).
164. Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 WM. & MARY L. REV. 267, 282 (1991).
165. See infra notes 182-88 and accompanying text.
166. See supra note 25 and accompanying text.
167. Buckley v. Valeo, 424 U.S. 1, 39 (1976) (citing Williams v. Rhodes, 393 U.S. 23, 32 (1968)) (internal quotation marks and citation omitted).
168. Robert C. Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249, 1276 (1995).
169. Id. at 1253.
170. The importance of the medium in which a given instance of speech occurs to the process of democratic self-governance is in my view the best explanation of why the Supreme Court rigorously protects nudity in film and cable television-media that are in its view part of the "structural skeleton" of public discourse - but not in live performances by erotic dancers on the stage of a "strip club." Compare Playboy Entm't Group, Inc. v. United States, 529 U.S. 803 (2000) (finding that a federal statute requiring cable television operators to fully scramble or otherwise limit sexually-oriented programming violated the First Amendment), with City of Erie v. Pap's A.M., 529 U.S. 277 (2000) (finding that the application of a city ordinance banning public nudity to a nude dancing establishment did not violate the First Amendment). As I have explained elsewhere, however, although there are good reasons "to presume that any particular message in a medium essential to democratic communication is in fact part of this democratic dialogue," this presumption is rebuttable.
171. See James Weinstein, Speech Categorization and the Limits of First Amendment Formalism: Lessons from Nike v. Kasky, 54 CASE W. RES. L. REV. 1091, 1121 (2004) [hereinafter Weinstein, Speech Categorization]. For instance, even though newspaper editorial columns are undoubtedly an essential medium for public discourse, a journalist who used such a column to tout a stock that he secretly purchased would have no First Amendment immunity against the laws forbidding stock manipulation.
172. See United States v. Wenger, 427 F.3d 840 (10th Cir. 2005). Similarly, despite the importance of film as a medium of democratic communication, legally obscene pornographic films are nonetheless entitled to no First Amendment protection.
173. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
174. As the Court explained in First Nat'l Bank v. Bellotti, 435 U.S. 765, 791-92 (1978): "[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of the conflicting arguments . . . . [I]f there be any danger that the people cannot evaluate the information and arguments . . . , it is a danger contemplated by the Framers of the First Amendment." 99 It explains, for instance, why defamation of a public official is afforded considerable First Amendment protection, while defamation of a private person on a matter of no public concern is not.
175. Compare N.Y. Times v. Sullivan, 376 U.S. 254 (1964),
176. with Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).
177. It explains why an anti-war protestor has a right to wear a jacket outside a courtroom emblazoned with the message "Fuck the Draft," but why someone inside the courtroom has no right to use vulgar epithets. Compare Cohen v. California, 403 U.S. 15, 22 (1971),
178. with State v. Lingwall, 637 N.W.2d 311, 315 (Minn. Ct. App. 2001).
179. It explains why a lawyer has a First Amendment right to solicit clients when "seeking to further political and ideological goals" through litigation but not for ordinary economic reasons. Compare In re Primus, 436 U.S. 412, 414, 439 (1978),
180. with Ohralick v. Ohio State Bar Ass'n, 436 U.S. 447 (1978).
181. And it also explains why, as discussed in detail above, see supra notes 67-83 and accompanying text, politically motivated economic boycotts receive rigorous First Amendment protection, while ordinary economic boycotts receive no First Amendment protection whatsoever.
182. Compare NAACP v. Claiborne Hardware, 458 U.S. 886 (1982),
183. with FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990).
184. As discussed above, the right to protest against the United States' involvement in a war is not defeasible even if this protest would harm the war effort. Nor does the First Amendment allow government to excise racist ideas from public discourse even on the quite plausible grounds that such expression leads to discrimination against minorities. See WEINSTEIN, supra note 8, at 52-59;
185. see also Virginia v. Black, 538 U.S. 343 (2003);
186. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
187. See RONALD DWORKTN, TAKING RIGHTS SERIOUSLY xi ( 1977).
188. This view was famously expounded by Alexander Meiklejohn, who wrote that the First Amendment does not require that "on every occasion, every citizen shall take part in public debate. . . . What is essential is not that everyone shall speak, but that everything worth saying shall be said." ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 25 (1948). Contrary to Meiklejohn, however, American free speech doctrine is particularly concerned with the opportunity of "every citizen [to] take part in public debate."
189. See Robert Post, Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse, 64 U. COLO. L. REV. 1109, 1115 (1993) ("Traditional First Amendment doctrine, and a broad spectrum of modern political theories, . . . locat[e] the normative essence of democracy in the opportunity to participate in the formation of the 'will of the community' through 'a running discussion between majority and minority.'" (quoting HANS KELSEN, GENERAL THEORY OF LAW AND STATE 284-88 (Anders Wedberg trans., 1949)). Thus no matter how many times we have all heard the message that Osama bin Laden is evil, I still have a right to voice that view in public discourse.
190. As discussed above, the Court has created a very narrow right of press access when it is a "necessary precondition" to assuring access to information through which "individual citizen can effectively participate and contribute to our republican system of self government." Globe Newspapers v. Superior Court, 457 U.S. 596, 604 (1982).
191. In addition, in First National Bank v. Bellotti, the Court, in a 5-4 decision, invalidated a Massachusetts law strictly limiting political contributions or expenditures by corporations "for the purpose of . . . influencing or affecting the vote on any question submitted to the voters." 435 U.S. 765, 768 (1978) (citation omitted). The restriction was challenged by corporations prevented from spending money to oppose a proposed amendment to the Massachusetts Constitution authorizing a graduated income tax. In responding to the contention that corporations have no First Amendment right to speak, the Court, in an opinion by Justice Powell, responded that "the Constitution often protects interests broader than those of the party seeking their vindication," and noted that that "the First Amendment, in particular, serves significant societal interests."
192. Id. at 776 (emphasis added);
193. see also id. at 783 ("A commercial advertisement is constitutionally protected not so much because it pertains to the seller's business as because it furthers the societal interest in the 'free flow of information."'). The Court found that the speech the corporation in this case wished to engage in "is the type of speech indispensable to decisionmaking in a democracy."
194. Id. at 777 & n. 11
195. (citing, inter alia, MEIKLEJOHN, supra note 102, at 24-26).
196. Previously, in extending First Amendment protection to commercial speech the Court relied in part on the "general public interest" in the "free flow of commercial information." See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 764 (1976).
197. See, e.g., McConnell v. FEC, 540 U.S. 93 (2003), which upheld a ban on expenditures by corporations and labor unions for communications that refer to "a clearly identified candidate for Federal office" made 60 days before a general election or 30 days before a primary election.
198. Id. at 333-34. Invoking "respect for the legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,"
199. id. at 205, the Court found that suppression of this speech is justified by the interest in curtailing the "corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support," as well as in preventing "circumvention of valid contribution limits" imposed on these entities.
200. Id. at 205 (citing Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990)) (quotation marks and citations omitted);
201. see also Austin, 494 U.S. 652 (upholding a state law prohibiting corporations from using corporate treasury funds for expenditures in support of, or in opposition to, any candidate in elections for state office);
202. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34-35 (1984) (rejecting a First Amendment challenge to a protective order in a civil suit preventing a party from disclosing information of public concern obtained in discovery, the Court cites state interest in preventing potential discovery abuse and in protecting privacy rights of litigants and third parties as justification for restricting the information).
203. At some extreme point, inadequate access to information can be said to impair the core democratic precept of popular sovereignty, for without a certain quantum of information available to them, in no meaningful sense can the people be said to be governing society. This is true even in the unlikely case that government were to impede the flow of information to this degree for some legitimate reason or even incidentally, not because it mistrusts the people to make wise choices or for any other illegitimate reason. That violation of instrumental norms can, in an extreme case, constitute a breach of core norms reveals that the distinction between the core and the periphery of rights is somewhat artificial. The distinction is, however, nonetheless helpful, perhaps even necessary, for a coherent constitutional rights jurisprudence.
204. First invoked by John Milton in the seventeenth century, see JOHN MILTON, AREOPAGITICA: FOR THE LIBERTY OF UNLICENSED PRINTING (Precy Lund, Humphries & Co. 1927) (1644), the truthdiscovery rationale for free speech was fully developed in the middle of the nineteenth century by John Stuart Mill.
205. See JOHN STUART MILL, ON LIBERTY (Edward Alexander ed., 1999) (1859).
206. It was introduced into Supreme Court jurisprudence by Justice Oliver Wendell Holmes, who wrote that "the ultimate good desired is better reached by free trade in ideas" and that "the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . ." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
207. See Weinstein, Database Protection, supra note 66, at 324 & n.7, 344-48.
208. See sources cited in id. at 324 n. 109.
209. In a technical sense, free speech justified by the marketplace of ideas is an individual right: because it posits that for the benefit to society to occur each person must be able to speak freely, this theory assigns a free speech right to the individual. But this assignment differs from a true individual right which locates the right in the individual not for some strategic reason but out of a basic moral precept about the proper relationship between the individual and the state. Unlike rights grounded in such a basic moral precept, instrumentally-based rights such as those based on a marketplace of ideas theory are vulnerable to being overridden in a specific instance or even extinguished altogether if the utilitarian calculus suggests that society would be better off, either in a particular instance or generally, without this particular right. See FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL INQUIRY 23 (1982) ("If the argument from truth generates a Free Speech Principle, then we [may] justify suppression based on any interest other than the search for truth by weighing the interest in discovering truth against the other interests sought to be protected.").
210. C. Edwin Baker, First Amendment Limits on Copyright, 55 VAND. L. REV. 891, 897 (2002).
211. See, e.g., Red Lion Broad, v. FCC, 395 U.S. 367, 390 (1969) (stating that "it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail").
212. See Eldred v. Ashcroft, 537 U.S. 186 (2003).
213. See, e.g., C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH (1989);
214. David Richards, Free Speech and Obscenity Law: Toward a Moral Theory of Obscenity Law, 123 U. PA. L. REV. 45 (1974);
215. cf. Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982).
216. Redish, supra note 113, at 593, 626.
217. Such a view is based on a capacious view of constitutionally protected decisional autonomy and as such is in tension with the Court's narrow view of decisional autonomy in its Fourteenth Amendment substantive due process jurisprudence with respect to such crucial matters as the right of terminally ill people to determine the timing of their death. See Washington v. Glucksberg, 521 U.S. 702 (1997).
218. For a further discussion of the Court's substantive due process jurisprudence and its reluctance to recognize new fundamental rights, see infra notes 220-22 and accompanying text.
219. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976).
220. See SULLIVAN & GUNTHER, supra note 39, at 511.
221. See Michael M. Roy & Nicholas J.S. Christenfeld, Commentary, Dogs Still Do Resemble Their Owners, 16 PSYCHOL. SCI. 743 (2005).
222. See Hamburger, supra note 2, at 299 n.71 (mentioning linguistic observation of waitstaff as an example of research that might be subject to IRB approval). 120
223. See 3 ENCYCLOPEDIA OF PSYCHOLOGY 294-95 (Alan E. Kazdin ed., 2000) (discussing the problem of "experimenter expectancy effect" and ways to control it).
224. See Weinstein, Speech Categorization, supra note 97, at 1103, 1112-13.
225. See supra note 1 and accompanying text; infra notes 143-47, 152 and accompanying text.
226. See Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1, 4, 23-24, 41 (2000);
227. Weinstein, Speech Categorization, supra note 97, at 1106.
228. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 494-95 n.11 (1954) (relying on social science research demonstrating detrimental effects of segregation on black children's motivation to learn).
229. This difference would, of course, be a relevant argument for extending First Amendment protection to social science research under the "necessary condition for speech" theory considered in Part I. As we have seen, however, the Court has tightly confined this protection to conduct closely connected to the core political speech such as expenditures for speech in support of political candidates or access to public proceedings. See supra notes 24-31 and accompanying text. Since only a very limited amount of social science research is even arguably so intimately connected to participation in the democratic process, it is highly doubtful that any such difference would lead the Court to extend First Amendment protection to social science research on this theory.
230. Post, supra note 96, at 1276. I am indebted to Professor Post for suggesting this idea to me.
231. See generally Lovell v. Griffin, 303 U.S. 444, 451 (1938) (stating, in facially invalidating a city ordinance prohibiting the distribution of "literature of any kind" without prior written permission of the City Manager, that the ordinance "strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor.");
232. Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 760 (1988) (noting, in facially invalidating a local ordinance allowing newspaper vending racks to be placed on public property only upon receipt of a permit which could be denied if the mayor found that doing so was "necessary and reasonable," that the ordinance was directed "narrowly and specifically at expression or conduct commonly associated with expression: the circulation of newspapers").
233. I am grateful to Eugene Volokh for suggesting this comparison to me. Technically, research involving "survey procedures" and "interview procedures" is exempt from IRB regulation if the identity of the subjects are not discernable from researcher's records and disclosure of the subjects' responses would not have any adverse consequences for the subjects. See 45 C.F.R. § 46.101(b)(1)-(3) (2005). But such research is not truly exempt from IRB review. Although "exempt research" is "free of continued oversight by the IRB," the institution at which the research occurs in the form of "either a designated IRB representative, the entire committee, or some institutional authority, not the researcher" must determine if the project is exempt," a determination that usually requires a "brief review process."
234. See National Science Foundation, supra note 45;
235. see also OFFICE FOR HUMAN RESEARCH PROTECTIONS, DEP'T OF HEALTH AND HUMAN SERVS., GUIDANCE ON WRITTEN IRB PROCEDURES (2002), http:// www.hhs.gov/ohrp/humansubjects/guidance/irbgd702.htm ("OHRP recommends that institutions adopt clear procedures under which the IRB (or some authority other than the investigator) determines whether proposed research is exempt from the human subjects regulations.").
236. See infra notes 176-200 and accompanying text.
237. At this point in the analysis, I am also putting aside the fact that IRB regulations are imposed on employees of the institutions adopting these regulations. This is an important consideration that I will factor into the analysis in connection with the funding discussion in Part IV. Thus the question at this stage of the inquiry is whether government acting not as employer but in its sovereign capacity can constitutionally require social science researchers to obtain prior approval from an IRB before interviewing subjects.
238. See In re Grand Jury Proceedings (Scarce), 5 F.3d 397, 399 (9th Cir. 1993) (assuming without deciding that interviews as part of scholarly research enjoy the same freedom of press protection afforded traditional news gathering).
239. ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 26 (Oxford Univ. Press 1965) (1948).
240. See, e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, 781 (1978) ("The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate.");
241. Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936) (observing that "newspapers, magazines, and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity").
242. See, e.g., Leathers v. Medlock, 499 U.S. 439, 447 (1991) (referring to the press as "a watchdog of government activity");
243. Minneapolis Star and Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 585 (1983) (noting "the basic assumption of our political system that the press will often serve as an important restraint on government");
244. Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 108-09 (1979) (referring to "press' 'watchdog' role");
245. Mills v. Alabama, 384 U.S. 214, 219 (1966) ("The press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve.");
246. Grosjean, 297 U.S. at 250 ("[S]ince informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.").
247. Unlike most academic researchers, journalists see their role as a check on governmental power. See, e.g., Nick Madigan, Making an Issue of the Media: More and More Politicians Find Attacking Reporters is a Tactic that Pays Off, BALT. SUN, Aug. 20, 2006, at IF ("There has long been an assumption that the media 'had a special role to play' in society, given the provision in the Constitution for freedom of the press . . . ." (citing Paul Waldman, a senior fellow at Media Matters for America));
248. Nicholas Kristof, Don't Turn Us Into Poodles: What's Worse Than a Press 'Out of Control'? One Under Control, PITTSBURGH POST-GAZETTE, July 7, 2006, at B7 (arguing that with respect to coverage of recent Presidential decisions the media has "failed in our watchdog role, and we failed our country").
249. Some have urged that the constitutional protection the crucial democratic function played by journalism should be grounded not in the free speech clause but in the free press clause of the First Amendment. See, e.g., Baker, supra note 110, at 919-22;
250. Potter Stewart, "Or of the Press," 26 HASTINGS L.J. 631 (1975). But whatever its source, the protection provided to the press is generally no greater than the protection provided to an individual engaging as a speaker in public discourse. This parity of protection obviates the need to decide if the instrument of communication utilized by the speaker constitutes "the press" for purposes of the First Amendment.
251. Under this jurisprudence, defamatory statements about the official duties of public officials are highly protected; defamatory statements about private individuals on matters of public concern receive more modest protection; while defamatory remarks about a private person can be regulated by statute or common law with no interference from the First Amendment. See Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986).
252. Of course not all journalistic interviews contribute to democratic self-governance, but the fact that most do and the critical importance of this medium to democratic self-governance argue against any such refined approach for the press. Because of the important check the press plays in our constitutional system against governmental malfeasance and abuse, it is much more likely that even facially-neutral regulations of such an essential journalistic practice as interviewing sources of information might be motivated by a desire to squelch this important "watch dog" function. In contrast, there is much less reason to be suspicious of such an illegitimate government purpose in applying IRB regulations to social scientists' interviews with their subjects.
253. The distinction between matters of public and private concern, although no stranger to the law, is not self-defining and might in close cases be difficult to administer.
254. Post, supra note 96, at 1276.
255. Indeed, gradations among highly protected media already seem to exist. For instance, cable broadcasting is more highly protected than over-the-air broadcasting. Compare FCC v. Pacifica Found., 438 U.S. 726 (1978) (upholding against a First Amendment challenge to federal law giving the FCC authority to prohibit radio and over-the-air television broadcasts of sexually explicit or profane material at times when children are likely to be in the audience),
256. with Playboy Entm't Group, Inc. v. United States, 529 U.S. 803 (invalidating similar law as applied to cable broadcasting). In addition, the Court has upheld licensing systems for film that it would not allow to be applied to the print medium.
257. See Times Film Corp. v. Chicago, 365 U.S. 43 (1961). Similarly, although the Court upheld a regulation requiring over-the-air broadcasters to provide free time to individuals subject to personal attack on the air, the Court held unconstitutional a state law requiring newspapers to allow political candidates to reply free of charge to criticism of them by the newspaper.
258. Compare Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969),
259. with Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974). And the fierce scrutiny the Court applied to the Communications Decency Act suggests that the Internet may be the most highly protected medium of all.
260. See Reno v. ACLU, 521 U.S. 844 (1997).
261. Such a suit would in effect be a hybrid of a facial and an as-applied attack in that it would amount to a facial challenge to the application of the entire IRB system to all social science research using traditional interview techniques.
262. Such an application of IRB regulations might nonetheless be constitutional if imposed on researchers not by government acting in its sovereign capacity, as we are assuming at this stage of the analysis, but by a state university that had adopted such a policy on its own accord. See Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006) ("The government as employer indeed has far broader powers than does the government as sovereign." (quoting Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion))). For a further discussion of this issue, see infra notes 300-02 and accompanying text.
263. See 45 C.F.R. § 46.111(a)(3) (2005); see also National Science Foundation, supra note 45 ("The principle of justice concerns the distribution of the burden of research and the reaping of possible benefits.").
264. 45 C.F.R. § 46.111(a)(3).
265. See 45 C.F.R. §46.111(a)(4)-(5).
266. Another key requirement - protecting of the privacy of the subjects and maintaining the confidentiality of the data, 45 C.F.R. §46.111(a)(7) - is arguably speech related in that breaches of privacy and confidentiality will almost always occur through communication of information. But communicative activity of this sort is different from the communicative elements that distinguish social science from biomedical studies and thus arguably endow
267. See infra notes 172-207 and accompanying text.
268. United States v. O'Brien, 391 U.S. 367 (1968); see supra notes 51-52 and accompanying text. As discussed above, supra notes 54-60, 82-83, 125 and accompanying text, it is possible that the Court would refuse to subject this application of the IRB regulation to any First Amendment scrutiny. Because, however, traditional interviewing methods are arguably part of a medium essential to democratic self-governance, it would be a mistake for the Court to take this approach.
269. 391 U.S. at 377.
270. With respect to federal provisions, the requirement that the regulations be "within the Constitutional power of government" raises not a First Amendment problem but the federalism question of whether the regulation is within the scope of the federal government's delegated power. Here this requirement would inquire whether the federal government's conditioning its grants to research institutions on the institution's agreement to implement IRB is within Congress's spending power. See infra note 253. It is not at all clear that this requirement, which was developed in a case reviewing a federal law, has any applicability to state regulations. Unlike the federal government, states have general power. To the extent that this requirement merely asks whether the state interest is legitimate, that would be subsumed by the second requirement that the regulation further an "important or substantial" government interest. Nonetheless, although it would seem otiose to have done so, a plurality of Court applied the first requirement to a city ordinance in City of Erie v. Pap's A.M., 529 U.S. 277, 296 (2000).
271. See Dorf, supra note 61, at 1202 ("Prong three [of the O'Brien test] merely restates the proposition that the challenged regulation must be content-neutral - which is a precondition for the application of the test in the first instance."). Of course, as Eugene Volokh emphasizes, a regulation of conduct can be speech-neutral on its face but content-based as applied to an expressive activity. See Volokh, supra note 66, at 1284. As discussed supra notes 143-47 and accompanying text, the prior approval requirement simpliciter is best conceptualized as speech-neutral.
272. See Stanley Milgram, Behavioral Study of Obedience, 67 J. ABNORMAL & SOC. PSYCHOL. 371 (1963). In an experiment investigating the conflict between personal conscience and obedience to authority, subjects were told that they were participating in a study that tested the effects of punishment on learning behavior. Acting as "teachers," subjects administered an electric shock to the "learner" (a confederate of the experimenter) whenever a question was answered incorrectly. As the intensity of the shocks increased, the "learner" complained of severe pain. When the subjects expressed concern for the "learner," the experimenter strongly urged them to continue with the experiment. Results showed that although subjects were experiencing severe stress over their actions, they continued to obey the experimenter. For a criticism of the ethics of this experiment, see Diana Baumrind, Some Thoughts on the Ethics of Research: After Reading Milgram's "Behavioral Study of Obedience," 19 AM. PSYCHOLOGIST 421 (1964).
273. OFFICE FOR PROTECTION FROM RESEARCH RISKS, DEP'T OF HEALTH AND HUMAN SERVS., PROTECTING HUMAN RESEARCH SUBJECTS: INSTITUTIONAL REVIEW BOARD GUIDEBOOK 3-3 (1993) [hereinafter INSTITUTIONAL REVIEW BOARD GUIDEBOOK].
274. See also National Science Foundation, supra note 45 (noting ("[e]motional or psychological harm. . . when a research interaction cause[s] upset, or worry about breach of confidentiality as a type of harm that can arise from social science research"). As discussed infra text accompanying notes 172-175, 203-207, if an IRB rejected or required modification of a study in order to prevent or mitigate stress and feelings of guilt or embarrassment arising from questions directed to the subjects, the application of the IRB regulation would be considered content based, therefore requiring a different analysis.
275. See supra text accompanying notes 143-146.
276. 529 U.S. 277 (2000).
277. Id. at 291.
278. Id. at 301.
279. Id.
280. Id. at 299 (quoting Texas v. Johnson, 491 U.S. 397, 406 (1989)) (quotation marks omitted).
281. Id. at 298-99.
282. 472 U.S. 675, 689 (1985).
283. Id. (emphasis added). Subsequent cases have followed Albertini's interpretation of the fourth O'Brien requirement.
284. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 126 S. Ct. 1297, 1311 (2006);
285. City of Erie v. Pap's A.M., 529 U.S. 277, 301-02 (2000);
286. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 299 (1984). As John Hart Ely has written, this standard forbids only a "gratuitous inhibition of expression." John H. Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482, 1484-85 (1975).
287. See infra note 165.
288. This would be true even if research involving ordinary interviewing methods were subject to the full rigors of the IRB requirements, rather than being "exempt" and thus needing only initial approval. See supra note 128. But since this "exemption" has already lessened the burden, any claim that the fourth prong is violated becomes even less tenable.
289. Demonstrating just how toothless the second and fourth prongs of the O'Brien test are, the Supreme Court has never found a regulation to have failed either of these prongs. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 577 (1991) (Scalia, J., concurring) (observing that "[w]e have never invalidated the application of a general law simply because the conduct that it reached was being engaged in for expressive purposes and the government could not demonstrate a sufficiently important state interest"). At the Supreme Court level at least, the only meaningful part of the O'Brien test has been its crucial third prong, which tests whether the proffered justification really is speech neutral. See id. at 578 ("All our holdings (though admittedly not some of our discussion) support the conclusion that 'the only First Amendment analysis applicable to laws [of general applicability] is the threshold inquiry of whether the purpose of the law is to suppress communication. If not, that is the end of the matter so far as First Amendment guarantees are concerned . . . .'" (quoting Cmty. for Creative Non-Violence v. Watt, 703 F.2d 586, 623 (D.C. Cir. 1983) (en banc) (Scalia, J., dissenting))). In cases other than ones dealing with incidental burdens on expression imposed by laws of general applicability, the Court has sometimes applied a more searching version of the O'Brien test. See, e.g., Turner Broad., Inc. v. FCC, 512 U.S. 622 (1994) (reviewing federal law mandating that cable operators allocate a portion of their channels to local broadcasters). Although subjecting the law to serious scrutiny and remanding the case for further factual findings,
290. see Weinstein, Database Protection, supra note 66, at 335, the Court in a 5-4 decision ultimately sustained the regulation. Turner Broad., Inc. v. FCC, 520 U.S. 180 (1997). Given the importance of interviewing as a medium of democratic participation, it is possible that the Court would similarly apply a somewhat elevated level of O'Brien scrutiny even to interviews not involving matters of public concern.
291. An IRB may waive the requirement that informed consent be documented by a written consent form if "the research presents no more than minimal risk of harm to subjects and involves no procedures for which written consent is normally required outside of the research context." 45 C.F.R. § 46.117(c)(2) (2005). In addition, § 46.116(d) authorizes the IRB to waive or alter the informed consent requirement in appropriate circumstances. See also National Science Foundation, supra note 45 ("The cultural norms and life-styles of subjects should be considered in deciding how to approach informed consent. Issues such as whether to . : . deal with subjects individually or in groups, seek the consent of gatekeepers or superiors in lieu or in addition to the individual subjects' consent . . . should be dictated by the culture and context of the research and the level of risk. . . . Persons should be treated respectfully in accordance with their culture and circumstances."). Moreover, in this scenario it is arguable that obtaining the informed consent of the village headman, fathers, and husbands complies with the general requirement that the researcher obtain the informed consent of the subject "or the subject's legally authorized representative." 45 C.F.R. § 46.116 (2005).
292. United States v. Albertini, 472 U.S. 675, 688-89 (1985); see also FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 430 (1990);
293. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 296-297 (1984) (holding that "the validity of this regulation need not be judged solely by reference to the demonstration at hand").
294. Albertini, 472 U.S. at 689.
295. Ronald Dworkin, In Praise of Theory, 29 ARIZ. ST. L.J. 353, 371 (1997).
296. Trial Lawyers Ass'n, 493 U.S. at 431-32.
297. Indeed, most problematic IRB decisions seem to be a product not of the IRB regulations themselves but rather of mis- or over-application of these regulations. See Jerry Menikoff, Where's the Law? Uncovering the Truth About IRBs and Censorship, 101 NW. U. L. REV. 791 (2007) ("To the extent that social and behavioral scientists find themselves facing inappropriate burdens in conducting their research, the most likely cause of that problem is their institution's flawed operations."); Posting of Jeffrey Cohen to HRPP Blog, http://hrpp.blogspot.com/2006/03/mission-creep.html (Mar. 4, 2006, 10:14 EST) (explaining that the "horror stories" about application of IRB review to social science research result because the IRBs "don't understand social and behavioral research[,] don't know how to use or are afraid to use the flexibility in the regulations, and . . . don't pay sufficient attention to the efficiency of their procedures").
298. Whether a regulation is content neutral or content based is often key to determining its validity under the First Amendment. See WEINSTEIN, supra note 8, at 35-38. Indeed, content-based regulations of public discourse are virtually per se impermissible. See id. at 35;
299. see also supra notes 92-93, 98, 100-01 and accompanying text. Though government generally has far greater leeway to regulate the content of speech other than through public discourse,
300. see WEINSTEIN, supra note 8, the distinction between content-neutral and content-based regulations remains significant. Even with respect to speech other than that by which we govern ourselves, when government regulates expression because of its communicative impact rather than for some content-neutral purpose, there is a greater likelihood that it is trying to suppress an unpopular idea. But this does not mean that content-based regulation of speech other than public discourse is unconstitutional or even presumptively so. Indeed, as we shall see, some content-based IRB regulations of social science research are no more problematic than content-neutral ones. See infra notes 198-200 and accompanying text. Others, however, are more suspect. See infra notes 201-07 and accompanying text.
301. 45 C.F.R. § 46.111(a)(1)-(2) (2005).
302. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-43 (1994) (stating that a content-neutral law is one that is justified without reference to the content of the regulated speech);
303. Volokh, supra note 66, at 1284 (explaining that a facially content-neutral or speech-neutral law is content based "as applied" when "speech triggers the law because of the harms that may flow from what the speech says").
304. INSTITUTIONAL REVIEW BOARD GUIDEBOOK, supra note 153, at 3-3.
305. See supra note 120 and accompanying text.
306. This scenario is based on an ingenious experiment by Malamuth and Check which employed similar techniques to assess the effects of viewing pornography. See Neil M. Malamuth & James V.P. Check, The Effects of Mass Media Exposure on Acceptance of Violence Against Women: A Field Experiment, 15 J. RES. IN PERSONALITY 436 (1981).
307. See National Science Foundation, supra note 45 ("Deception poses ethical problems and should be dealt with by weighing the benefits of the research against the harm (if any) of the deception. Aside from any potential harm to participants, deception can also harm the institution by building the perception among potential subjects that 'researchers are liars.'"). Since deception would vitiate informed consent, a researcher wanting to deceive subjects about the purpose of a study would need a partial waiver of this requirement. Id.;
308. see also 45 C.F.R. § 46.116(d) (2005).
309. United States v. O'Brien, 391 U.S. 367, 377 (1968).
310. Texas v. Johnson, 491 U.S. 397, 410 (1989). By "outside" of the O'Brien test, the Court meant because the restriction was justified by a speech related interest, the test developed for incidental burdens on speech imposed by laws aimed at conduct was no longer applicable. Thus, rather than apply "the less stringent" scrutiny imposed by the remainder of the O'Brien test, id. at 403, the Court applied the strict scrutiny appropriate to content-based regulations of political expression in a pubic forum at issue in that case. Id. at 412.
311. See Schauer, Cuban Cigars, supra note 62, at 785 n.24 (noting that "a variety of different" levels of scrutiny may be triggered, "depending on the particular nature of the communicative impact and the nature of the government interests"). Indeed, because IRB regulations are rules of general applicability, it is not certain their application to social science will trigger the O'Brien test or any level of First Amendment scrutiny, even if the application is content based. See FTC. v. Superior Court Trial Law-yers Ass'n, 493 U.S. 411, 430 (1990);
312. see also supra notes 73-83 and accompanying text.
313. Indeed, because it does not forbid exposing subjects to material that might influence them to engage in activities that will promote their health, the regulation is arguably viewpoint based.
314. McDonald, supra note 20, at 1009.
315. Id. For other statements of the All Inclusive Approach or variations on it, see, for example, JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 16.47, at 1226 (6th ed. 2000) ("A content-based restriction of [speech] is valid only if it fits within a category of speech that the First Amendment does not protect, for example, obscenity.");
316. EUGENE VOLOKH, THE FIRST AMENDMENT: PROBLEMS, CASES, AND POLICY ARGUMENTS 2 (2001) (stating that besides the traditional "exceptions," the settings in which government may regulate the content of speech are confined to those in which it is acting as proprietor or educator, rather than a sovereign).
317. In routine free speech cases, it is arguably preferable if judges do not appeal to first principles but instead apply a simple rule such as provided by the AU Inclusive Approach. Not only does such a bright line test give ordinary citizens a fairly good idea of what they can say or publish without fear of prosecution, it also prevents prosecutors, judges and juries from smuggling their antipathy towards unpopular ideas or groups into the analysis.
318. See Garcetti v. Ceballos, 126 S. Ct. 1951, 1973 (2006) (Breyer, J., dissenting) ("Because virtually all human interaction takes place through speech, the First Amendment cannot offer all speech the same degree of protection. Rather, judges must apply different protective presumptions in different contexts, scrutinizing government's speech-related restrictions differently depending upon the general category of activity.");
319. WEINSTEIN, supra note 8, at 40-41.
320. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1768, 1778-84 (2004);
321. see also Weinstein, Speech Categorization, supra note 97, at 1097-99;
322. supra notes 93, 99 and accompanying text.
323. See Ronald Dworkin, The Curse of American Politics, N.Y. REVIEW OF BOOKS, Oct. 1996, at 21 n. 15 ("Constitutional lawyers often . . . say that all constraints on speech are banned in principle, and the exceptions must be justified, one by one, as special. But the vast range of acts of speech that are plainly not protected by the First Amendment makes it analytically clearer to say that it is protected speech that is special.");
324. Schauer, supra note 187, at 1768 (observing that "even the briefest glimpse at the vast universe of widely accepted content-based restrictions on communication reveals that the speech with which the First Amendment deals is the exception and the speech that may routinely be regulated is the rule").
325. For a trenchant criticism of the All Inclusive Approach, both generally and as a method for determining the protection afforded scientific speech, see Robert Post, Encryption Source Code and the First Amendment, 15 BERKELEY TECH. L.J. 713, 715-17 (2000).
326. Such an overextension will also likely have the unfortunate unintended consequence of diluting the strength of the protection afforded core First Amendment activity. See Weinstein, Database Protection, supra note 66, at 350.
327. See supra notes 118-23 and accompanying text.
328. See supra notes 121-23 and accompanying text. In contrast, a "subject" of an ordinary interview or survey conducted by a social science researcher is arguably no more dependent on the researcher or vulnerable to harm than is the "source" in an ordinary journalistic interview.
329. The situation might be different if tobacco companies were large donors to the university and there was reason to believe that the IRB denial was motivated by a desire not to jeopardize this funding or was a result of direct pressure from these companies.
330. These same health concerns would most likely not be sufficient to ban images glorifying smoking in films distributed to the general public or to forbid deceptive or misleading documentary films. But that is because films distributed to the general public are, unlike those shown to subjects of a scientific experiment, part of "a structural skeleton that is necessary . . . for public discourse to serve the constitutional value of democracy." Post, supra note 96, at 1276;
331. see supra notes 96-97 and accompanying text.
332. See Daniel Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. PA. L. REV. 771, 845-46 (1999) (noting that because "the physicianpatient relationship is marked by an imbalance of authority," speech in the physician-patient relationship "may be regulated in a manner that speech outside that context cannot");
333. cf. Bailey v. Huggins Diagnostic & Rehab. Ctr., Inc., 952 P.2d 768, 769 (Col. Ct. App. 1997) (upholding, in case in which a dentist was found liable for malpractice for recommending contrary to accepted dental practice removing amalgams containing mercury, the First Amendment right of another dentist to convey this view to the public in a book and a television interview).
334. Restrictions on physician speech may interfere with the patient's interest in private decisionmaking. See supra notes 115-17 and accompanying text. But it is difficult to see how a law forbidding deception will interfere with this interest, unless the patient truly wants to be deceived.
335. See supra notes 44, 125 and accompanying text.
336. See supra notes 21-42 and accompanying text.
337. If the Court is not prepared to extend any free speech protection to biomedical research despite its undoubted contribution to the marketplace of ideas and information on matters of public concern, it is unlikely to extend such protection to social science research because this type of research arguably produces more information of public importance. And it would be illogical to do so for this reason just because social science involves more communication with subjects than does biomedical research. See supra p. 521.
338. The fact that the experiment uses film to expose the subjects to these images does not alter this result. In its ordinary usage as a medium of mass communication, film is undeniably an important part of the "structural skeleton that is necessary . . . for public discourse to serve the constitutional value of
339. emocracy." Post, supra note 96, at 1276. However, when used in a psychological experiment like Professor Winston's, film has no such essential connection to democracy.
340. This would be similar to the third step of the O'Brien test, but would require only a legitimate reason, not a speech neutral one. See supra note 149 and accompanying text.
341. See R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1992).
342. INSTITUTIONAL REVIEW BOARD GUIDEBOOK, supra note 153, at 3-1 to -10.
343. Cf. id. at 3-4 (giving the following example of research that involves risk of psychological harm: "A social psychologist attached a psycho-galvanometer to subjects (male college students). The participants were told that the needle would be deflected if they were aroused, and that if the needle deflected when they viewed photographs of nude males, it would indicate latent homosexuality. Then false feedback was given so that the subjects were led to believe incorrectly that they were latent homosexuals. After the experiment, the ruse was explained.").
344. See supra notes 127-28 and accompanying text.
345. Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972) (internal citations omitted).
346. Application of strict scrutiny would amount to ruling that because of its potential for inviting political viewpoint discrimination, this interpretative guideline is unconstitutional "on its face."
347. Of course, such a nebulous level of scrutiny itself invites judges to smuggle their own ideological predispositions into the analysis, thus engaging in judicial viewpoint discrimination. See James Weinstein, Free Speech, Abortion Access, and the Problem of Judicial Viewpoint Discrimination, 29 U.C. DAVIS L. REV. 471, 474-90 (1996). This possibility presents another argument in favor of either total judicial abstention from the IRB field, even when the application of the regulation in question presents the specter of ideological viewpoint discrimination, or announcing an equally bright line rule that any requirement of prior approval of research consisting only of interviews on matters of public concern is unconstitutional. Federal judges, however, are by dint of their training and experience usually sensitive both to the danger and impropriety of allowing their own ideology to hold sway and, though by no means immune from this danger, are nonetheless less likely to succumb to this temptation than are IRB members.
348. Irwin, supra note 20, at 1504.
349. The focus of Irwin's article is not on the constitutional issues raised by IRB regulation but on restrictions on scientific experimentation generally. She notes the term "research" encompasses "reading, writing, discussing, and publishing activities that are protected as pure expression, independent of their connection to science," but warns that "these expressive elements can easily cloud the issue of whether the nonexpressive conduct of experimentation is protected." Id. at 1490. Parts I and II of this Article demonstrated that, "publishing activities" aside, the expressive elements of research are not likely to endow that activity with much First Amendment protection against IRB regulation. See discussion supra Parts I and II.
350. Professor Hamburger notes but does not pursue the possibility that the First Amendment protects freedom of research or inquiry apart from the protection he believes is bestowed by freedom of speech. See Hamburger, supra note 2, at 306 n.94.
351. Irwin, supra note 20, at 1511 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
352. Irwin supra note 20, at 1508-15 (citing and discussing Schneider v. Smith, 390 U.S. 17 (1968) (upholding right of an applicant to the merchant marines to not have to answer questionnaire inquiring into applicants beliefs and associations);
353. Barnette, 319 U.S. 624 (recognizing right of school children not to salute flag);
354. Wooley v. Maynard, 430 U.S. 705 (1977) (finding that the First Amendment protects individuals from being compelled to display an ideological slogan on vehicle license plate);
355. Elrod v. Burns, 427 U.S. 347 (1976) (recognizing right of public employees to be free from pressure to belong to or contribute to a political party in order to maintain their jobs);
356. Branti v. Finkel, 445 U.S. 507 (1980) (holding that public employees cannot be dismissed solely for their political affiliations);
357. Rutan v. Republican Party, 497 U.S. 62 (1990) (extending Elrod prohibitions on political patronage requirements to job promotion, transfer, recall and hiring decisions)).
358. Irwin, supra note 20, at 1508-10 (citing and discussing Stanley v. Georgia, 394 U.S. 557 (1969) (recognizing the right to possess obscene material in one's own home) and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973) (holding that a law prohibiting distribution of obscene material restricts action, not thought)).
359. The Fifth Amendment, which is applicable only to the federal government, provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law . . . ." U.S. CONST. amend. V. The Fourteenth Amendment reads: "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. CONST, amend. XIV § 1.
360. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992) ("Although a literal reading of the [Due Process] Clause [of the Fourteenth Amendment] might suggest that it governs only the procedures by which a State may deprive persons of liberty, . . . at least since [1887] the Clause has been understood to contain a substantive component as well . . . .").
361. See Carey v. Population Servs. Int'l, 431 U.S. 678 (1977);
362. Griswold v. Connecticut, 381 U.S. 479 (1965).
363. See Casey, 505 U.S. 833; Roe v. Wade, 410 U.S. 113 (1973).
364. See Turner v. Safley, 482 U.S. 78 (1987);
365. Zablocki v. Redhail, 434 U.S. 374 (1978).
366. See Moore v. City of East Cleveland, 431 U.S. 494 (1977).
367. See Troxel v. Granville, 530 U.S. 57 (2000);
368. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
369. See Washington v. Glucksberg, 521 U.S. 702 (1997);
370. see also Tenet v. Doe, 544 U.S. 1, 5, 10-11 (2005) (rejecting claim on stare decisis grounds that the CIA violated respondents "procedural and substantive due process rights by denying them support and by failing to provide them with a fair internal process for reviewing their claims" under the state secrets privilege);
371. Reno v. Flores, 507 U.S. 292, 302-03 (1993) (rejecting the "right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution");
372. Collins v. City of Harker Heights, 503 U.S. 115, 125-26 (1992) (rejecting a right of municipal employees to a "reasonably safe work environment" based on the Due Process Clause of the Fourteenth Amendment);
373. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 194-95 (1989) (rejecting a minor's right to adequate state protection from an abusive parent).
374. Bowers v. Hardwick, 478 U.S. 186, 194-95 (1986); see also Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 223-26 (1985) ("Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments." (quoting Moore v. East Cleveland, 431 U.S. 494, 543-44 (1977) (White J., dissenting))). Bowers held that there was no fundamental right to engage in homosexual sodomy. Although in Lawrence v. Texas, 539 U.S. 558, 578 (2003), the Court subsequently found that criminal sanctions against adults engaged in consensual homosexual sodomy violated the Due Process Clause of the Fourteenth Amendment, it sedulously avoided declaring that there was a fundamental right to engage in such activity.
375. See infra note 240 and accompanying text.
376. This is likely the reason that commentators have long tried to derive a right of research from the Free Speech Clause of the First Amendment and why Professor Irwin, though properly recognizing that such a right does not reside there, nonetheless invokes the First rather than the Fifth and Fourteenth Amendments as the source for this right.
377. Irwin, supra note 20, at 1479.
378. One means by which government might interfere with thoughts is by requiring people seeking some government job or benefit to answer questions concerning their beliefs. See, e.g., Schneider v. Smith, 390 U.S. 17 (1968).
379. It would be quite difficult to draw a principled and workable line at any intermediate point on this continuum. For instance, if it infringes the right of inquiry to prohibit writing down one's thoughts in order to facilitate solving a problem, how can a ban on the use of a computer for the same purpose not do so? Conversely, if the state can constitutionally ban cloning of humans, why can't it prohibit a procedure that comes right to the edge of the forbidden result, such as cloning a chimpanzee?
380. Zablocki v. Redhail, 434 U.S. 374, 386 (1978).
381. Id. at 387.
382. Irwin, supra note 20, at 1525.
383. See infra notes 231-32 and accompanying text. Irwin actually proposes that any indirect burden be subject to intermediate scrutiny, a view that is inconsistent with the Court's fundamental rights jurisprudence.
384. Irwin, supra note 20, at 1525.
385. 505 U.S. 833, 887-99(1992).
386. As the adjective "undue" suggests, a finding of an undue burden means not only that the right has been significantly burdened but that the burden is unjustified and thus violates the right. Whether a right is infringed, in contrast, depends only on the degree of burden, not the justification for the burden. The Court's abortion jurisprudence often conflates these two separate analytical steps.
387. Irwin, supra note 20, at 1525.
388. See supra notes 226-27 and accompanying text.
389. See Youngberg v. Romeo, 457 U.S. 307, 320 (1982) ("In determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance 'the liberty of the individual' and 'the demands of an organized society.'") (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)).
390. See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) ("[T]he Fourteenth Amendment 'forbids the government to infringe . . . fundamental liberty interests . . . unless the infringement is narrowly tailored to serve a compelling state interest.'" (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).
391. See Gunther supra note 205, at 8.
392. See, e.g., Glucksberg, 521 U.S. at 728 (holding that because assistance in committing suicide "is not a fundamental liberty interest" the ban on assisted suicide at issue would be constitutional if "rationally related to a legitimate government interest.").
393. Gunther, supra note 205, at 8 (internal quotations omitted).
394. 539 U.S. 558 (2003).
395. She also suggested that the Court has subjected incidental restrictions to intermediate scrutiny. Irwin, supra note 20, at 1515-18. In my view, an incidental restriction would be subject to a rational basis test.
396. In the abstract, the right of inquiry may be as fundamental to human dignity and autonomy as the right to control one's procreation or to raise a child. Nonetheless, the Court would likely find that even a total ban on a line of research is not nearly as direct an intrusion on the right of inquiry as is, for in-
397. stance, a ban on abortion on a woman's right to bodily integrity and decisional autonomy. Looking to the other side of the equation, the Court would likely doubt its institutional competence to accurately assess the dangers that might arise from unconstrained research.
398. See supra text accompanying notes 148-149.
399. See Irwin, supra note 20, at 1528-29.
400. Surely the "diminished sense of individuality" that might affect identical twins would not be sufficient grounds to force a woman pregnant with twins to abort one of them. Nor is the fact that a fetus is certain (let alone at risk) to be born with a serious physical defect a compelling enough reason to force his mother to abort the pregancy.
401. Professor Irwin presents one arguably compelling reason for such a ban - a decreased variation in the human gene pool, "leaving humans more vulnerable to disease and adverse environmental conditions." Irwin, supra note 20, at 1529. However, a solution to these problems could easily be found by far less intrusive means, such as limiting the number of clones that could legally be produced.
402. Interestingly, Irwin also concludes that the Court would, despite the application of strict scrutiny, uphold a ban on human cloning. Id. at 1530. This conclusion puts into doubt whether, despite use of the label "strict scrutiny," Irwin's analysis really subjects the ban to the rigorous review the Court usually applies under that rubric.
403. As discussed above, the First Amendment would not afford even this modest level of protection for research except, possibly, if the research consisted solely of traditional interviewing techniques. See discussion supra notes 54-60, 82-83, 125 and accompanying text. But this difference is proper because unlike the interest in truth discovery in the marketplace of ideas or even information flow needed for public decision-making, the right of inquiry involves interests of identifiable individuals.
404. See supra notes 161-71 and accompanying text. Although not of particular concern to constitutional limitations on IRB regulations, it is worth noting that a likely consequence of deeming the interest in engaging in research a constitutional right of even modest weight would be to prevent government from banning research purely on moral grounds.
405. See Lawrence v. Texas, 539 U.S. 558, 571-74, 578 (2003) (holding that the government's general interest in morality is not sufficient to prohibit the exercise of a liberty interest specially protected by the Due Process Clause of the Fourteenth Amendment);
406. see also Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992) (moral opposition is not sufficient to infringe or unduly burden a woman's right to obtain a pre-viability abortion). Obtaining such special protection for a liberty interest, be it designated "fundamental, " "quasi-fundamental" or by any other term, is crucial, for it is well established that the government's interest in morality is sufficient justification for infringing a "mere" liberty interest.
407. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 60-61 (1973) (holding that except where legislation "impinges upon rights protected by the Constitution" government can "legitimately act . . . to protect 'the social interest in order and morality'") (quoting Roth v. United States, 354 U.S. 476, 485 (1957))).
408. See supra note 175 and accompanying text.
409. Rumsfeld v. Forum for Academic and Institutional Rights, 126 S. Ct. 1297, 1307 (2006).
410. United States v. Am. Library Ass'n, 539 U.S. 194, 203 (2003) (plurality opinion).
411. While the question under consideration here as well as in most of the recent Supreme Court unconstitutional condition cases involve conditions on federal subsidies, the doctrine also applies to state and local subsidies. See, e.g., Speiser v. Randall, 357 U.S. 513 (1958). There is, however, a conceptually similar doctrine applicable only to the federal government that imposes internal limits on Congress's power to spend for the general welfare under Article I, Section 8 of the Constitution.
412. See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987). These federalism cases are even more deferential to Congress than the decisions involving spending conditions affecting individual rights-so much so that the Court has not invalidated a spending program on federalism grounds since striking down a New Deal provision in 1936.
413. See United States v. Butler, 297 U.S. 1 (1936). Accordingly, if a spending provision imposing a restriction on speech or some other individual right does not violate the First Amendment, it is highly unlikely that it would violate the even less restrictive federalism limitations. Still, whether a spending condition imposes a "penalty" on an individual right is, in the final analysis, distinct from the question of whether by imposing the condition Congress has exceeded its spending power.
414. See infra notes 257-76 and accompanying text. It is therefore theoretically possible, though most unlikely, that even if consistent with the First Amendment and substantive due process, the IRB conditions attached to federal spending are unconstitutional on federalism grounds.
415. SULLIVAN & GUNTHER, supra note 39, at 1319;
416. see also Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1420 (1989) (observing that "conditioned benefits are frequently deemed 'penalties' when struck down and 'nonsubsidies' when upheld").
417. See, e.g., Harris v. McRae, 448 U.S. 297, 317 & n.19 (1980); Maher v. Roe, 432 U.S. 464, 474-75 & n.8 (1977).
418. Am. Library Ass'n, 539 U.S. at 203 (plurality opinion).
419. Sullivan, supra note 254, at 1420.
420. Id. at 1416.
421. Id. at 1420.
422. Am. Library Ass'n, 539 U.S. at 212 (plurality opinion) (quoting Rust v. Sullivan, 500 U.S. 173, 196 (1991));
423. see also id. at 203 ("Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives.").
424. Rust, 500 U.S. at 197.
425. Regan v. Taxation with Representation, 461 U.S. 540, 548 (1983) (quoting Cammarano v. United States, 358 U.S. 498, 513 (1959)).
426. 357 U.S. 513 (1958).
427. Id. at 518.
428. Id. at 519 (quoting Am. Commc'ns Ass'n v. Douds, 339 U.S. 382, 402 (1950)).
429. Id. at 518.
430. Nor did the Court do so in Grove City Coll. v. Bell, 465 U.S. 555 (1984), which summarily rejected a college's claim that conditioning receipt of federal funds on compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. Rather, the Court simply stated that "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept."
431. Id. at 575.
432. Dicta in the abortion funding cases underscores the centrality of the germaneness criterion in funding cases involving substantive due process rights. In upholding a Connecticut regulation extending Medicaid benefits for childbirth but denying benefits for nontherapeutic abortions, the Court stated: "If Connecticut denied general welfare benefits to all women who had obtained abortions and who were otherwise entitled to the benefits," the denial of benefits might constitute a "penalty" on the right to abortion. Maher v. Roe, 432 U.S. 464, 474-75 n.8 (1977);
433. see also Harris v. McRae, 448 U.S. 297, 317 & n.19 (1980) ("A substantial constitutional question would arise if Congress had attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion.").
434. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998) (quoting Regan v. Taxation with Representation, 461 U.S. 540, 548 (1983)); Rust v. Sullivan, 500 U.S. 173, 192 (1991).
435. See United States v. Am. Library Ass'n, 539 U.S. 194, 203 (2003) (plurality opinion) ("Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives.");
436. id. at 211-12 ("Congress may certainly insist that these 'public funds be spent for the purposes for which they were authorized.'" (quoting Rust, 500 U.S. at 196)).
437. See Am. Library Ass'n, 539 U.S. at 203 (plurality opinion).
438. See Taxation with Representation, 461 U.S. 194.
439. See Rust, 500 U.S. at 192-201.
440. Finley, 524 U.S. at 572 (quoting 20 U.S.C. § 954(d)(1) (1988)).
441. See Am. Library Ass'n, 539 U.S. at 210-14 (plurality opinion).
442. The one spending case pertinent to our inquiry in which the Court found a condition unconstitutional is FCC v. League of Woman Voters of Cal., 468 U.S. 364 (1984), discussed infra notes 281-97.
443. See Rust, 500 U.S. at 201; Webster v. Reproductive Health Servs., 492 U.S. 490, 507-11 (1989); Harris v. McRae, 448 U.S. 297, 312-18 (1980); Poelker v. Doe, 432 U.S. 519, 521 (1977); Maher v. Roe, 432 U.S. 464, 471-78 (1977).
444. See supra note 1.
445. See Finley, 524 U.S. at 587.
446. Id. at 587 (quoting Regan v. Taxation with Representation, 461 U.S. 540, 548 (1983)). Because IRB regulations do not facially discriminate on the basis of speakers' viewpoint, the validity of the spending restriction is not put in question by Rosenberger v. Rector & Visitor of University of Virginia, which invalidated a facially viewpoint discriminatory limitation imposed by a public university on the expenditure of funds to support student publications. 515 U.S. 819, 831 (1995).
447. In addition, unlike federal research support, the funds in Rosenberger were used to create a "limited public forum," id. at 829, a setting in which government's ability to restrict speech is particularly circumscribed.
448. See, e.g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993).
449. To the extent, however, that IRB regulations are applied in an ideologically viewpoint discriminatory fashion, Rosenberger suggests that the fact that IRB regulation is imposed as a condition of funding rather than directly by force of law will not cure what would otherwise be an unconstitutional application of the regulations.
450. See infra note 304.
451. See 45 C.F.R. § 46.103(b)(1) (2005).
452. 468 U.S. 364 (1984).
453. Id. at 400.
454. 461 U.S. 540.
455. League of Women Voters, 468 U.S. at 400.
456. Rust v. Sullivan, 500 U.S. 173, 197 (1991). Like the organizations in Taxation with Representation, the recipients of funds in Rust could continue to advocate abortion outside of the project.
457. See id. at 198-99.
458. Id. at 197. Professor Hamburger makes essentially this argument.
459. See Hamburger, supra note 2, at 324-26.
460. Making any assessment of League of Women Voters ' impact on conditional funding doctrine difficult is that only three paragraphs of the lengthy majority opinion are devoted to spending issues.
461. See League of Women Voters, 468 U.S. at 399-401. Because the government belatedly raised the funding issue, almost all of the majority opinion is devoted to analyzing the constitutionality of the ban as if it were directly imposed by law.
462. See id. at 399.
463. Id. at 384-85.
464. Id. at 385 n.16.
465. Id. at 388.
466. Id. at 385 n.16. Although these findings are obviously relevant to whether these asserted interests are germane to the funding condition, the Court is here analyzing the ban as an outright prohibition, not as a funding condition.
467. See supra note 287.
468. League of Women Voters, 468 U.S. at 387 n.18.
469. Id. at 399-400.
470. Id. at 400.
471. This is basically the view taken by Professor Sullivan. See Sullivan supra note 254, at 1465-66. A somewhat different nexus problem would seem to exist with the private capture rationale, for it is difficult to comprehend a connection between federal funding and private capture. It is probably for this reason that Justice Rehnquist (as he then was) did not rely on either of these rationales but instead rested his argument in favor of the validity of the condition entirely on the taxpayer disagreement justification.
472. See League of Women Voters, 468 U.S. at 402-08 (Rehnquist, J., dissenting). The Court, in contrast, found this rationale extremely weak or perhaps even impermissible.
473. Id. at 385 n.16.
474. League of Women Voters, 468 U.S. at 381.
475. Unlike the germaneness criterion, this analysis need not lead to an all or nothing result. Under this analysis, the requirement that an ethical principle be applied to nonfederally funded research might be valid except to the extent that it burdens arguably core free speech activity such as interviewing people on matters of public concern.
476. United States v. Am. Library Ass'n, 539 U.S. 194, 203 (2003) (plurality opinion) (quoting South Dakota v. Dole, 483 U.S. 203, 206 (1987)).
477. Id. at 203 n.2 (quoting Dole, 483 U.S. at 210 (omission in original)). Of course a private research institution, including a private university, cannot "itself violate the First Amendment.
478. See Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) ("[The Fourteenth] 'Amendment erects no shield against merely private conduct, however discriminatory or wrongful.'") (quoting Shelley v. Kraemer, 224 U.S. 1, 13 (1948))). There is thus some question whether this branch of the unconstitutional conditions doctrine has any applicability to conditions on receipt of funds by private entities. However, private conduct impelled by government has correctly been held to satisfy the "state action" requirement.
479. See id. at 1004-05; Adickes v. S.H. Kress & Co., 398 U.S. 144, 170-71 (1970) (stating that "a State is responsible for the discriminatory act of a private party when the State, by its law [or custom having the force of law], has compelled the act"). The better view, therefore, is that the doctrine should apply to inducement of private as well as governmental actors. In any event, this doctrine is applicable to the numerous state universities receiving federal research funds conditioned on fulfilling the IRB requirements.
480. See, e.g., Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006) ("[T]he government as employer indeed has far broader powers than does the government as sovereign[.]" (quoting Waters v. Churchill, 511 U.S. 661, 671 (1994))); Connick v. Myers, 461 U.S. 138 (1983).
481. It is an open question whether government institutions, such as state universities, have First Amendment rights. See Am. Library Ass'n, 539 U.S. at 210-11 (plurality opinion). But in any event, private universities possess these rights.
482. Furthermore, if the concept of academic freedom restricts government from imposing restrictions on universities, this consideration is no longer present when the university itself imposes the restriction.
483. See Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (recognizing "a constitutional dimension, grounded in the First Amendment, of educational autonomy").
484. An application of IRB regulation that would likely not be saved by the conditional nature of these regulations would be an IRB decision that engaged in ideological viewpoint discrimination forbidden by the First Amendment. See supra text accompanying notes 203-207. Although the state has greater leeway when acting as educator and employer to regulate speech than it does as sovereign, this leeway probably does not include the ability to engage in ideological viewpoint discrimination.
485. See Doe v. Univ. of Mich., 721 F. Supp. 852, 863 (E.D. Mich. 1989) (explaining, in striking down a "campus code" applied to controversial classroom speech, that a university may not adopt "an anti-discrimination policy which had the effect of prohibiting certain speech because it disagreed with ideas or messages sought to be conveyed");
486. see also James Weinstein, A Constitutional Roadmap to the Regulation of Campus Hate Speech, 38 WAYNE L. REV. 163 (1991).
487. See generally Rosenberger v. Rector & Visitor of Univ. of Va., 515 U.S. 819, 830 (1995) (stating that, in regulating speech in a limited public forum, university may engage in content discrimination "if it preserves the purposes of that limited forum," but not "viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations");
488. Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985) ("Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.").
489. See DWORKIN, supra note 101, at xi.