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Guaranteeing free speech

In a blog post heard ’round the oral history world, Zachary Schrag broke the news that the Federal Policy for the Protection of Human Subjects was finally amended to deregulate oral history. This new regulation, the result of decades of work by a determined group of scholars, is as exciting as it is complicated, so today on the blog we’re offering a meta-summary of some reflections on this change.

A post on the Oral History Association’s blog succinctly clarified the rule change.

The most critical component of the new protocols for oral historians explicitly removes oral history and journalism from the regulations…The new protocols will take effect on January 19, 2018.

Schrag’s blog post offered a detailed explanation of the technical language, and the differences between the early Notice of Proposed Rulemaking (NPRM) and the final regulation.

The final rule preserves and clarifies the NPRM’s deregulation of oral history. This is a great victory for freedom of speech and for historical research.

The NPRM somewhat confusingly listed a number of activities “deemed not to be research” in §__.101, then presented the definition of research itself in §__.102. The final policy more logically defines research, then lists “activities…deemed not to be research.”

Whereas the NPRM excluded “Oral history, journalism, biography, and historical scholarship activities that focus directly on the specific individuals about whom the information is collected,” the final rule offers a broader exclusion:

For purposes of this part, the following activities are deemed not to be research: (1) Scholarly and journalistic activities (e.g., oral history, journalism, biography, literary criticism, legal research, and historical scholarship), including the collection and use of information, that focus directly on the specific individuals about whom the information is collected. [§__.102(l)(1)]

So freedom depends on the activity, not the discipline, with literary critics, law professors, and others who interview individuals benefiting. Another section of the announcement notes that this provision will also apply to political scientists and others who hope “to hold specific elected or appointed officials up for public scrutiny, and not keep the information confidential.”

The post went on to explain the reasoning, and another post on the blog details the consequences of the change for social scientists.

The National Coalition for History weighed in with some background on both the change and the contentious relationship between historians and IRB procedures.

[The regulation] was originally promulgated as the “Common Rule” in 1991. The historical community, collaborating through the National Coalition for History, has long argued that scholarly history projects should not be subject to standard IRB procedures since they are designed for the research practices of the sciences…

Beginning in the mid-1990s, college and university students, faculty, and staff who conducted oral history interviews increasingly found their interviewing protocols subject to review by their local Institutional Review Board (IRB), a body formed at every research institution, and charged by the federal government with the protection of human subjects in research. Human subject risk regulation had its roots in the explosion of government-funded medical research after World War II as well as with the revelation of glaring medical abuses, including Nazi doctors’ experiments on Holocaust victims and the Tuskegee Syphilis Study. History and other humanities disciplines were never originally intended to fall within the purview of the regulation, generally known as the “Common Rule,” which addressed biomedical and behavioral research.

The growing inclusion of oral history under IRB review began an often contentious, confusing, and chaotic process. Was oral history—or historical studies more generally—the type of “generalizable” research covered by the Common Rule?

The post drew on an article written by Linda Shopes that clarified the process and what was at stake before the rule had passed.

Finally, Mary Marshall Clark, Director of the Columbia Center for Oral History Research, offered some perspective for the change, focusing on the motivation driving those who sought it.

The technical arguments we made will not stand out in the historical record; the spirit that actually motivated so many arguments regarding the application of the policy was our resolute determination to remind the board that oral history is part of protecting the right to free speech and free inquiry.

In that sense, we were not thinking of protecting narrators as potential victims, but protecting their right to speak freely and openly as citizens and agents in a democracy that guarantees free speech.

While the change will not take effect until 2018, we are excited at the opportunities this change will create for recording and preserving the voices of people who might otherwise be denied a space to speak. We welcome additional analysis, summaries, and guides, so please add to this collection in the comments below or on TwitterFacebookTumblr, or Google+.

Featured image: “Liberty” by Mobilus In Mobili, CC BY 2.0 via Flickr.

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