Boston College Case Press Release On Amici Curiae Brief To The United States Supreme Court
December 20th 2012
Two of the world’s most respected pressure groups for journalistic freedom and media rights, The Reporters Committee for Freedom of the Press and Article 19, have joined with a group of distinguished American social scientists and the three most influential Irish-American groups in the US, to submit amici (‘friend of the court’) briefs to the United States Supreme Court in the Boston College archives case.
The Supreme Court is considering a petition from Ed Moloney and Anthony McIntyre, researchers for the Boston College-based Belfast Project on the oral history of paramilitary groups in Northern Ireland, to overturn a decision by the First Circuit of Appeals denying their effort to challenge subpoenas demanding that interviews be handed over to the police in Northern Ireland. The subpoenas were issued by the US Department of Justice on behalf of the government of the United Kingdom.
The Reporters Committee was formed in 1970 to assist a New York Times reporter who had been ordered by a Federal Grand Jury to reveal his sources in the Black Panther organization. Its mission statement reads:
“To protect the right to gather and distribute news; to keep government accountable by ensuring access to public records, meetings and courtrooms; and to preserve the principles of free speech and unfettered press, as guaranteed by the First Amendment of the U.S. Constitution.”
The steering committee of the group contains some of America’s best known and respected reporters including Tony Mauro, Wolf Blitzer, Michael Duffy, Nat Hentoff, Dahlia Lithwick, Jane Mayer, Doyle McManus, Andrea Mitchell, Bob Schieffer, Pierre Thomas and Judy Woodruff.
Article 19, a London-based human rights group, was established in 1987 by the heirs of the American businessman and philanthropist J Roderick McArthur to defend the right to freedom of expression. The group’s name is derived from Article 19 of the Universal Declaration of Human Rights which reads:
“Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”
Among the cases taken up by Article 19 have been the imprisonment by the apartheid regime of South African editor, Zwelakhe Sisulu who was eventually released after an Article 19 campaign; the publication of a critique of Israel’s regulation of the Palestinian press and a worldwide campaign, spearheaded by Article 19, to protect the writer Salman Rushdie from an Iranian-issued fatwa which threatened his life.
The three Irish-American groups include the Ancient Order of Hibernians which is the oldest and largest Irish group in America. It was founded in 1836 and has long been involved in charitable and community activities. The AOH supports the reunification of Ireland and encourages initiatives to protect civil rights in Northern Ireland. The Irish American Unity Conference (IAUC) is a non-party political group that advocates for civil rights and justice in Northern Ireland and for the peaceful reunification of Ireland through peaceful activity in America. The Brehon Law Society is a professional association that fosters the legal profession amongst those of Irish ancestry. Taking its name and inspiration from the body of ancient Celtic law, the Brehon Law Society fosters respect and support for civil rights, both in Northern Ireland and elsewhere in the world where there is such a need.
The social scientists are fourteen ranking academics from Indiana University-Purdue University Indianapolis; Indiana University, Bloomington, and Butler University, Indiana including Deans, Professors, Assistant & Associate Professors and Lecturers in Sociology and Law.
SUMMARY OF AMICI BRIEFS
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
The REPORTERS COMMITTEE brief hits the core confusion over Branzburg, the hard-fought but landmark 1972 Supreme Court decision on reporters rights. While the 5-4 verdict ruled that reporters could not refuse to give evidence to a grand jury, the opinion of one concurring justice, Justice Lewis Powell suggested that reporters’ privilege can be considered on a case by case basis. The REPORTERS COMMITTEE brief is notable for the doubling down on the petition argument for case-specific analysis and noting the conspicuous failure of the Supreme Court to offer needed guidance on the reporter’s privilege. The proliferation of privilege approaches calls for clarification, while at the same time showing that a meaningful privilege can be developed and applied. The first section also shores up the important point that third-party possession of material does not destroy confidentiality.
“The inability of journalists and academics to have their objections heard before a court regarding government-issued subpoenas seeking the compelled release of confidential information will certainly have a detrimental effect on their protected First Amendment interests. Regardless of whether they recognize a privilege preventing the compelled disclosure of such information, courts should have an obligation to review such claims of infringements on First Amendment rights on a case-by-case basis.”
“The First Circuit decision goes against a significant body of precedent that interprets this Court’s decision in Branzburg as providing the basis for a qualified privilege for not only journalists, but also academic researchers and anyone engaged in the process of gathering information for dissemination to the public.”
The ARTICLE 19 brief paints the Supreme Court as a national and international outlier in its failure to establish a clear standard of source protection as an incident of free expression. The First Circuit adds insult to injury by dispensing with universal tenets of due process in an international context. International tribunals recognize that the lack of source protection poses a special threat to reporters and researchers in conflict and post-conflict zones. The need for a factual record becomes clear in light of paramilitary activity at the time of the Belfast Project interviews and in the present day.
“…… we explain why review is necessary to clarify the constitutional right to the protection of sources, particularly for journalists and researchers working internationally and in conflict and post- conflict societies. Case-specific evaluation of source protection claims is the norm, rather than the exception, among both individual states and the international community. The special concerns of journalists and researchers working internationally, particularly those working in conflict and post- conflict areas, demonstrate the need for First Amendment jurisprudence that respects and protects confidential sources and information, even where government officials proceed under an MLAT. To dismiss such a First Amendment challenge before it can be meaningfully asserted and examined unnecessarily exposes U.S. writers and researchers who carry on vital news-gathering activities, as well as the sources themselves, to violence and retaliation from abroad.”
The IA GROUPS brief includes some background on the conflict and the threat that the subpoenas pose to the peace process, calling the Court’s attention to the history of collusion and sectarianism among the police. It then digs into the First Circuit’s attempt to interpret the MLAT and section 3512, artfully challenging the unattractive conclusion that the new statute and MLAT combine to eliminate judicial review. Finally, it rebuts the separation of powers concern that treaty interpretation belongs to the executive, pointing out that “political crimes” are a justiciable issue in the extradition setting.
“This Court’s review is imperative given the potential negative repercussions from the enforcement of the subpoenas at issue to the fragile peace process in Northern Ireland. The success of the 1998 Belfast Agreement remains uncertain, and its implementation is imperiled by the continuing atmosphere of mistrust and, specifically, the history of past collusion with loyalist paramilitary forces on the part of the Northern Ireland police. Given the recent history of the conflict, the enforcement of the subpoenas poses not only a risk of violent reprisals to the former participants in the Belfast Project, but also potentially undesirable consequences to the continuing process of reconciliation in Northern Ireland.”
The SOCIAL SCIENTISTS brief addresses the continuum of First Amendment interests that flow between journalists and researchers, which are undermined by the confusion of Branzburg. It goes on to highlight the additional important policies that favor the protection of academic research into conflict areas, and the nebulous state of First Amendment law as regards academic freedom.
“Any social science or oral history research is threatened by the potential subpoena of confidential materials, including sensitive or personal information that may or may not involve illegal activity. The threat of unlimited subpoena power undermines the ability of any researcher to promise confidentiality and thus to obtain honest and reliable answers to the most pressing issues of our time………The court of appeals’ decision thus jeopardizes the long-term ability of scholars to gain information regarding profoundly sensitive and controversial subjects, including information that can help society avoid violent conflicts in the future.”
“The result in the case creates potentially crippling uncertainty for those who gather information from confidential sources, including academic researchers like amici. Such researchers need to be able to assure their sources that their confidentiality will be respected and their interests considered by a court of law before the court grants a subpoena and publicizes their private information or personal identity. Without such assurances, many persons will be unwilling to speak with researchers, limiting the scope of social science research and leaving irreparable lacunae in human knowledge.”