The Code of Virginia states: "Every person engaged in the conduct of human research or proposing to conduct human research shall affiliate himself with an institution or agency having a research review committee, and the human research which he conducts or proposes to conduct shall be subject to review and approval by such committee in the manner set forth in this section." Human research is defined as "any systematic investigation, including research development, testing and evaluation, utilizing human subjects, that is designed to develop or contribute to generalized knowledge," the same as the definition used by the federal government for programs it funds.
The government can decide to fund only research meeting its standards (setting aside differences between government speech, which can express the government’s viewpoint, and government-funded public forums, which can be topic-limited but not viewpoint-discriminatory). But can it impose such restraints on anyone conducting research at all? Where the question is medical research involving a physical intervention, the answer is likely yes; such restraints surely have a rational basis. But what about when the research consists of asking people questions, as pollsters and sociologists, among others, do? Then it seems we might have a First Amendment problem.
This seems like a content-based restriction on speech: If you are doing human research, you have to get approval from an IRB. If you are doing nonsystematic investigation, you don’t need approval. This matters because (1) IRBs are expensive, thus raising the costs of speaking to research subjects and of producing the ultimate research, (2) the necessary affiliation with an IRB-having institution may be difficult to achieve for an independent scholar, deterring and even foreclosing speech.
If the government isn’t funding the research, it seems as if strict scrutiny would apply. The government may well have a compelling interest in preventing harm to research subjects. Such harm doesn’t just come from side effects of medications; it can be harm from being asked to revisit traumatic subjects, or from invasion of privacy. (If the law does apply to political pollsters, as it appears to, the government may not have a compelling interest in preventing people from being confronted with unpleasant political topics – but I’ll assume it does, and say that the political nature of some of the affected speech goes to the countervailing concerns for allowing people to be exposed anyway.)
The big problem with Virginia’s method of addressing these
harms is that we have some conventional torts to deal with them, like invasion
of privacy and intentional infliction of emotional distress. If those are for some reason insufficient, we
could try rigorous informed consent requirements to ensure that people know what
they may be risking when they participate. In other words, there are a range of less restrictive means the
government could use to target the harm.
Relatedly, the law is underinclusive in odd ways. Nonsystematic investigation can also harm privacy and revisit old trauma. Indeed, journalism is far more likely to do so than sociological research. Normally, legislatures can choose to address whatever portions of a problem they wish to; half measures are constitutionally legitimate. But when it comes to speech, substantial underinclusiveness is evidence that the government has blundered and that its intervention will cause unacceptable distortions in the marketplace for speech. Here, it doesn’t seem like a good idea to make systematic research more difficult to conduct than anecdotal reportage.
Nonmedical research should, of course, be conducted according to appropriate professional norms. But those norms aren’t always about avoiding any individual harm. Historians, for example (who are increasingly subject to claims by university IRBs that their research requires IRB approval), do harm to reputations when they write critical histories. Virginia’s law is an example of a necessary idea – oversight of clinical research – taken too far, and one of the casualties is free speech.