Borat and Human Subjects Research

Warning to Readers: If you haven't see the Borat film, and intend to, you may not wish to read past the next paragraph, as I discuss some scenes from the film.

Federal law requires that federally-funded research at universities and other institutions be approved by an "Institutional Review Board" (IRB) if it involves human subjects. Many universities (including Columbia, where I teach), require approval even for non-federally-funded research, and even "exempt" research posing minimal or no risk to human subjects requires a specific, advance, exemption. Thus, two JSD students whose work I supervise, had to jump through numerous hoops before getting the go-ahead to conduct their research. What was this research? Were they repeating the Milgram experiment? Were they conducting clinical trials of a new drug? No. They are asking questions of government lawyers and judges about their experiences using alternative dispute resolution. As my colleague Philip Hamburger notes, if this scheme weren't attached to federal funding, it would be an unconstitutional prior restraint. (Indeed, Philip contends IRBs are unconstitutional even for federally funded research and even for medical research; he would rely instead on informed consent laws.)

Of course, nothing like the IRB process applies to independent researchers not receiving federal grants, or to comedians. This got me thinking: What if Sacha Baron Cohen WERE affiliated with a university? It's not so implausible. His cousin is a professor of developmental psychopathology at Cambridge, and Sacha himself is no dope, having attended Cambridge. So suppose that like other artists (Spike Lee taught at Harvard; Anna Deveare Smith at NYU), Baron Cohen had landed himself a gig at a research university, and from there launched his investigations as Borat, Ali G and Bruno. Could he possibly get IRB approval for ostensibly attending a dinner party as Borat, excusing himself, and then returning to the table with a bag of his own feces and asking the hostess where to deposit it? Or more generally for exposing the anti-Semitism, homophobia and sexism of his interviewees by posing as a sympathetic nit-wit? The answer, amazingly enough, is yes, because the point of Baron Cohen's interviews is not to produce "generalizable knowledge," a prerequisite for the application of the IRB approval process under the applicable federal regulations. The point, like the directions provided by MapQuest, is simply amusement.

And therein lies the utter silliness of the IRB regime. So long as we don't actually learn anything from Borat et al, there's no protection for the sensibilities of the subjects of "researchers" like Baron Cohen. But if KNOWLEDGE will result, well then the federal government and countless local bureaucracies must be on guard. Whether this renders the IRB rules unconstitutional I'm not sure, but I am at least persuaded by Hamburger that the regulatory regime is bizarre.