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Back in 1996, after my parody article "Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity" was published in the cultural-studies journal Social Text, people criticized and defended my ethics, and they debated what the affair did and did not prove. But no one, to my knowledge, proposed that I should be hauled before a disciplinary tribunal for failing to seek Institutional Review Board approval for my little "experiment."

Alas, times have changed, and not necessarily for the better. It was recently reported that Peter Boghossian, assistant professor of philosophy at Portland State University and co-author (with James Lindsay and Helen Pluckrose) of the so-called grievance studies hoax, is facing disciplinary action. In this hoax, Boghossian and the others posed as gender studies scholars and submitted fake papers to journals to see if they would be published -- which, in some cases, they were. Now Portland State is accusing Boghossian of experimentation on human subjects -- namely, the journal editors and reviewers -- without IRB approval. Moreover, and somewhat surprisingly (at least to me), the IRB experts who spoke with journalist Jesse Singal concurred that the university's interpretation of its IRB rules was very likely correct.

After all, federal regulations define "human subject" as "a living individual about whom an investigator … conducting research obtains … data through intervention or interaction with the individual" -- and the journal editors certainly qualify as such. (Matters are less clear concerning the reviewers, who were anonymous.) And Portland State University, like many other universities, has decided, as a matter of its own internal policy, to apply federal IRB rules to all research carried out by PSU employees or students -- though such treatment is legally mandatory only for projects sponsored by the federal government, which Boghossian's was not.

But common sense suggests that something has gone seriously awry here, when rules initially written to protect subjects in biomedical research from physical harm -- and later extended to social-science research, where the harm could be psychological -- are applied blindly and literally to an "audit study" aimed at testing the intellectual standards of scholarly journals. As Singal observed, "the potential for harm came in the form of reputational damage and humiliation to journal editors and reviewers." But so what? The journal editors are professionals undertaking a public responsibility, not people in the street. If they screw up, why shouldn't this be publicly known? Moreover, the journal editors are not voiceless: if their actions were defensible (as they may well have been), they and their supporters can set forth their reasons, and the rest of us can evaluate the competing arguments with our own brains.

Please note that the issue here is different from the one addressed in two recent articles, where it was proposed that research projects deemed to pose "low risk" might be exempted from IRB review (an issue that is quite delicate, as the comments on these articles show). Here I am not contending that the reputational risk to journal editors caught publishing grossly deficient articles is low. Quite the contrary: this risk can, depending on the circumstances, be severe. What I am contending, rather, is that journal editors do not deserve to be protected from this type of risk.

Here is an analogy that might prove fruitful. Under the Anglo-American common law, a statement is considered libelous if it is (a) false and (b) damaging to a person's reputation. But the U.S. Supreme Court changed that in the landmark 1964 case of New York Times v. Sullivan. After a civil rights group took a full-page advertisement in The New York Times to protest against police abuses in Alabama and elsewhere in the South, the Public Affairs Commissioner of Montgomery, Ala., sued the Times for libel -- in an Alabama court, of course -- on the grounds that the ad was damaging to his reputation and contained false statements (for instance, that Martin Luther King Jr. had been arrested seven times, when in fact the correct number was four).

The Supreme Court reversed the Alabama court's judgment against the Times and held that, when a public official sues for libel concerning his official conduct, the First Amendment's guarantee of freedom of expression demands that he be held to a higher standard of proof than in ordinary libel cases: he must prove not only that the statements were false, but that they were made either in the knowledge that they were false or in reckless disregard of whether they were true or false. Nothing less, the court held, would protect the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." In a series of subsequent cases, the Supreme Court extended this standard from public officials to "public figures," broadly defined.

Perhaps the Institutional Review Board rules need to be rethought along similar lines, with different standards for different types of "human subjects." And perhaps, in the meantime, Portland State University could temper the application of its internal policy with a little bit of common sense.

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