Institutional Review Boards: A University-Prescribed Chokehold on the First Amendment

First Amendment violations are not always as blatant as the government colluding with social media companies to shut down unpopular speech or forcing students to remove armbands signaling their aversion to the Vietnam War. Some free speech violations lurk behind ivy-covered walls. In one of the New Civil Liberties Alliance’s latest cases, Issak v. University of Tennessee et al., NCLA challenges the not-so-constitutional ways the University of Tennessee’s Institutional Review Board abridges plaintiff Idil Issak’s speech.

What are Institutional Review Boards?

Institutional Review Boards, or IRBs, require researchers conducting “a systematic investigation designed to develop or contribute to generalizable knowledge” to obtain prior-approval of the proposed research. The IRB mandate, however, does not apply to research that focuses specifically on an individual or where the author does not pull an over-arching theme from the data—think biographies or oral histories. This distinction is constitutionally impermissible, but more on that later.

Why do Institutional Review Boards exist?

History is littered with instances of ill- or mal-informed test subjects, great bodily harm, and inhumane treatment in the name of scientific research. Post-Holocaust and Nuremberg Trials, the Nuremberg Code provided a set of principles to follow when experimenting on human beings—“the first legal attempt to deal with ethical issues of modern research.” In the United States, the infamous Tuskegee Syphilis Study prompted the creation of Institutional Review Boards.

The Tuskegee Study was a 40-year research endeavor by the U.S. Public Health Service that “was supposed to observe the natural history of untreated syphilis.” At the time the government launched the study, there was no treatment for syphilis. However, even after penicillin provided a cure for the disease, researchers failed to provide the treatment to the poor black men targeted for the study. On top of that, the research subjects did not give informed consent to participate in the study.

While IRBs were seemingly developed to shield research participants from bodily harm, IRBs have pushed the limits of their jurisdiction. Government control of research raises grave First Amendment concerns—particularly in the area of social science research.

What does the Plaintiff in Issak v. University of Tennessee et al. want to research?

Plaintiff Idil Issak is a social scientist seeking a PhD in cultural anthropology. Ms. Issak wishes to interview domestic workers in two of the eight United Arab Emirates to understand the mental and physical adversities faced by these workers. Because she wishes to group the women qualitatively by common experiences, the University of Tennessee requires Ms. Issak to obtain IRB approval before completing her PhD research—even though that research consists solely of communicative research.

How did the University of Tennessee’s IRB violate the First Amendment?

The IRB mandate, applied to the Plaintiff’s research, reveals numerous First Amendment deficiencies. First, Ms. Issak cannot speak with domestic workers in the UAE until she obtains permission from the government, here the University of Tennessee and its IRB. Such a prior-approval requirement is antithetical to our First Amendment right to freedom of speech. A restriction that “makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.”[1]

Second, the IRB mandate operates as an unconstitutional condition. Simply put, for Plaintiff to obtain her PhD, she must forfeit her First Amendment rights.

The IRB requirements also operates as content-, speaker-, and viewpoint-based restrictions on speech. Content-based restrictions regulate speech based on the “content” or “substance” of the speech. Here, the IRB mandate applies only to speech designed to contribute to generalizable knowledge, thus discriminating based on content of the research. In fact, based on the University’s rules, a journalist or historian seeking to ask the same questions as Ms. Issak, a social scientist, would not need IRB approval if they do not seek to contribute to generalizable knowledge. This content-based distinction between speech that “contribut[es]to generalizable knowledge” and speech that does not negates any claim that the University seeks to protecting research subjects. That distinction also results in discrimination against speakers, with Ms. Issak treated differently as a social science researcher from historians or journalists who might ask the same questions, but not seeking to contribute to generalizable knowledge. Lastly, the IRB mandate discriminates based on viewpoint by requiring Ms. Issak to obtain a letter stating her research is culturally appropriate. This requirement makes third parties the arbiters of what communicative research Ms. Issak, an American protected by the First Amendment, may undertake based on the viewpoint underlying her research.

What’s next?

NCLA filed its case against the University of Tennessee and its IRB on June 2, 2025. This case seeks relief declaring the IRB mandate violates Ms. Issak’s First Amendment rights and an injunction barring the Defendants from requiring Ms. Issak to obtain IRB approval for her communicative research. Ms. Issak also seeks nominal damages of $1 from the individual defendants because this case is not about money, but about vindicating the Plaintiff’s First Amendment rights.

[1] Staub v. City of Baxley, 355 U.S. 313, 322 (1958)

July 7, 2025