As first reported by Chris Bray, Boston College has filed a notice of appeal in the Belfast Project Case. The appeal is from Judge Young’s order of January 20, the order on the second subpoena. So it seems ever clearer that there will be no appeal from Judge Young’s first order, the order compelling the turn-over of the Price interviews.
This appeal changes the whole complexion of the case. I have long argued that Moloney & McIntyre’s claims were weak, but for reasons of standing and the like. As far back as July, I noted that the underlying issue of the law of evidence—whether there is an “oral history privilege” that can be asserted in response to a subpoena—could come out either way. (On the other hand, I am personally skeptical whether such a privilege is good policy, but then, I’m not a judge!) Until today, it seemed to me that the First Circuit was likely to affirm Judge Young’s rulings without reaching the main issue. But now it seems the First Circuit will indeed issue what should prove to be a significant ruling on the issue of evidentiary privilege, which of course has First Amendment implications.
The timing of BC’s appeal is in question. Unless some party takes action, Moloney & McIntyre’s appeal will be heard before BC’s appeal is heard. But it is possible that a party, or perhaps the court on its own motion, may take some action to consolidate the appeals.