Belfast Project Case Shows the Need for First Amendment Consistency
Harvey Silverglate, Contributor
The great First Amendment advocate Nat Hentoff wrote a terrific book in 1992 entitled Free Speech for Me—But Not for Thee. It pointed out the short-sightedness of those who advocate for their own rights but fail to see that unless rights are uniformly applied across the board, they aren’t worth much. I thought about Hentoff’s felicitous title when contemplating the still lumbering litigation in Boston federal court concerning the right—or not—of two scholars to keep their controversial but historically invaluable trove of interview tapes from the hands of prosecutorial authorities.
On July 23 “Injustice Department” discussed the plight of Ed Moloney and Anthony McIntyre, the two scholars employed by Boston College to produce the Belfast Project, an oral history of the Irish “Troubles.”
The piece lamented BC’s decision to hand the project’s transcripts over to U.S. District Judge William Young for in chambers review, thus denying the scholars an opportunity to commit an act of civil disobedience to protect their sources (and themselves). BC’s actions amounted to a dereliction of its duty to defend the scholars’ promises of confidentiality, for even if the institution was unprepared to risk the penalties for disobedience to a court order, the individual scholars likely felt differently. At the very least, the scholars should have been allowed the opportunity to risk violating the court order to hand over the transcripts so as to protect what they viewed as sacred moral values and essential professional obligations. They were not given this option. (BC’s failure in this regard seems particularly puzzling and egregious, given that it is both a liberal arts and a Jesuit institution. Both intellectual strands have long histories of fidelity to matters of conscience.)
Left inadequately explored, however, was the history and nature of the “scholar’s privilege”—akin to the better-known “reporter’s privilege”—unsuccessfully invoked by Moloney and McIntyre, which the local press seems to have completely misunderstood and, indeed, trivialized.
The press, and most everyone else, failed to recognize that the Belfast Project case sets a dangerous precedent for reporters and scholars alike, because the scholar’s privilege is inextricably linked to the reporter’s privilege: as goes one, so goes the other. The only real difference, after all, between journalists and scholar-historians is that the former write the first draft of history, while the latter write the second. That distinction is not significant enough to justify a difference in the legal treatment of these two professional groups.
The obvious similarity between reporters and scholars is what makes, for example, The Boston Globe’s unsupportive editorial coverage of the Belfast Project case so peculiar. With source confidentiality beleaguered in both academia and journalism, and with the Globe’s parent paper, The New York Times, effusively praising the principled stands its own reporters occasionally take to protect their confidential sources, one would expect the Globe to be a bastion of support for the BC scholars.
Yet in a recent unsigned editorial, which was followed the next day by an equally ill-advised Op-Ed piece by Juliette Kayyem, the Globe took to criticizing Boston College for not “institutionalizing appropriate oversight of its research,” arguing that the scholars “should not have promised full confidentiality to former Irish Republican Army members who were subjects in an oral-history project.” Apparently the Globe editorial staff did not realize that the BC scholars they so readily criticized were relying on the same privilege that Globe and Times reporters frequently invoke and occasionally go to jail to defend. (Indeed, the only friend-of-the-court brief filed in the BC case in support of the claim of a scholar’s privilege came from the ACLU of Massachusetts. Not a single newspaper, media outlet, press association, or academic institution was to be seen or heard by the court.)
The reporter’s privilege has a controversial recent history. In 1972, eight justices of the United States Supreme Court split down the middle on the question of whether New York Times reporter Earl Caldwell could assert the First Amendment as the basis for a reporter’s privilege to refuse to turn over notes and recordings of highly sensitive interviews he conducted in his journalistic examination of the sometimes violent Black Panther movement. The high court’s impending 4-4 voting tie in the case, Branzburg v. Hayes,was broken by a somewhat oracular concurring opinion from Justice Lewis Powell, who, while refusing to grant an absolute and unequivocal reporter’s privilege, said that a judge nonetheless should balance the legitimate interests of law enforcement against those of the newsman “on a case by case basis.”
Since it was essential to the resolution of the privilege question by a 5-4 vote, Justice Powell’s concurring opinion has long been seen as establishing the controlling test for a federal court trying to decide whether to enforce a subpoena served on a journalist: “if a newsman believes that the … investigation is not being conducted in good faith,” or “if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement,” he or she can ask the court to quash the subpoena for his or her materials.
In the Belfast Project/Boston College case, no such hearing was conducted at which the scholars would have been afforded adequate opportunity to question either the good faith needs or the legitimacy of the Northern Irish investigation. The court, which very early in the litigation was already in possession of the contested interview materials (having been provided them by the BC legal team for private in-chambers review by the district court judge), had no incentive whatsoever to grant the scholars any opportunity to engage in such a searching inquiry. The scholars, in other words, had lost whatever leverage and option they would have had were the materials solely in their hands, rather than the judge’s. (BC is contesting a second subpoena for still other tapes. Arguments have not yet been scheduled by the Court of Appeals.)
The lack of such an inquiry is particularly alarming in this case, because the interests of the BC scholars go well beyond the typical case of a scholar who sees a professional need to resist a subpoena in order to protect the reputation or privacy rights of those who sit for interviews. The Belfast Project scholars could have made a compelling case on the witness stand -— as they attempted to do in affidavits they futilely filed with the courts in the initial case where not even BC contested the subpoena -— that turning over the interview tapes to the Northern Irish police might pose a threat to the lives of both the scholars and those who sat for interviews. There is, after all, a long history of the more fanatical combatants in the Troubles resorting to assassination of those seen as “informants.” (In fact, the authorities seeking the Belfast Project’s documents reportedly are investigating the long-ago murder of a suspected informant.) The dire situation Moloney and McIntyre now face is analogous to that previously faced by the Times’ Earl Caldwell -— or any reporter seeking to shed light on the hidden underbelly of society -— and makes obvious the necessity of protecting source confidentiality in cases presenting exigent circumstances such as those found here.
And while neither a reporter’s nor a scholar’s privilege is very clearly defined or established in the law, there is considerable legal support for both reporters and scholars in a factually appropriate case. In particular, First Amendment protection of newsmen and scholars has enjoyed some considerable support in the federal courts in Massachusetts since the Supreme Court decided Branzburg in 1972. In 1998, for example, Microsoft Corporation found itself defending against civil anti-trust allegations brought by the Department of Justice in connection with the company’s tactics in winning the “browser wars.” The company tried to subpoena the files of two Massachusetts-basedscholars -— one from Harvard Business School and one from MIT’s Sloane School of Business -— who had studied and were writing about the issue. The battle over the enforceability of Microsoft’s subpoenas thus was fought out in the federal courts in Boston. Citing the “important First Amendment values at stake,” the Court of Appeals for the First Circuit -— the very court that years later would give short shrift to the BC scholars in a case involving much higher stakes -— declined to enforce Microsoft’s attempted subpoena of the MIT and Harvard scholars.
“Academicians engaged in pre-publication research should be accorded protection commensurate to that which the law provides for journalists,” ruled the unanimous three-judge appellate panel in the case of the MIT and Harvard scholars. “After all, scholars too are information gatherers and disseminators. If their research materials were freely subject to subpoena, their sources likely would refuse to confide in them.”
It makes sense that the BC scholars have had a harder time seeking to protect their sources in a criminal investigation than the Harvard and MIT scholars faced trying to keep their research out of Microsoft’s hands. The state’s interests in the criminal arena are always seen as stronger than the interests of private civil litigants. But the Caldwell opinion of the Supreme Court, which set the standard for resisting a subpoena, was itself a criminal case. And with life-and-death issues at stake in the BC case, it is quite possible that the scholars, given half a chance, might have made a persuasive case that their interests in maintaining confidentiality, and indeed society’s interests in eventually learning the contents of the interviews once the interviewees died (presumably of natural causes), outweighed the insufficiently examined interests and motives of the Northern Irish police authorities.
In hindsight, it is now obvious that BC did not have the fortitude to function as a dependable repository for the tapes, and that the scholars should have retained them so that they would have the option of exercising their own moral and professional judgments in the event of a subpoena. Boston College, by blithely turning over the tapes and transcripts to Judge Young, and the news media and other academic institutions, by not ratcheting up public and professional pressure in support of enforcing a scholar’s privilege, severely hampered the ability of the scholars (and any BC officials and lawyers so inclined) to insist that the court conduct the necessary factual hearing.
In the face of poor judgment and dereliction of duty by BC, and a failure of moral and professional obligation on the part of the mainstream press that rarely hesitates to wrap itself in the mantle of the First Amendment, as well as other colleges and universities that have sat idly by, Moloney and McIntrye have been left with few legal options. Last month the two scholars filed a last-ditch petition for a rehearing before the full court membership after a panel of the Court of Appeals for the First Circuit upheld Judge William Young’s decision to turn over the first set of materials to the Northern Irish authorities, but the chance for reversal is slight. Nor is there much reason to believe that the second case, in which Judge Young ordered an even larger number of tapes to be turned over to the authorities, will fare any better in the Court of Appeals (nor, alas, in the editorial columns of the news media). The BC scholars are now alone to face whatever consequences come from the impending revelation of their confidential sources -— a virtual certainty in the absence of intervention by the Supreme Court, which would be the judicial equivalent of a “Hail Mary pass” made famous by a BC football hero of years past. Injustice Department wishes the scholars well.
(The research and editorial assistance of Zachary Bloom and Juliana DeVries is gratefully acknowledged.)