As we all know, Boston is the hub of the universe, but today it really was true, at least if you’re talking about the universe of US constitutional law. Three major constitutional cases were argued today. I missed the first one, United States v. Pleau (which may not have been a constitutional case, strictly speaking, but was still pretty juicy), but I did hear most of the arguments in the DOMA case as well as the Belfast Project case. Indulge me for a minute on the DOMA case, before I turn to the Belfast Project.

The DOMA Case

The courthouse was packed to hear oral arguments on the challenges to Section 3 of DOMA. So packed, in fact, that I ended up in the overflow room, which was itself filled to capacity. The issues ranged from the proper scrutiny to be applied to a law that classifies people on the basis of sexual orientation, Congress’s Article I power to legislate a definition of marriage, and the federalism issues at stake when the federal government says it will not recognize a state’s marriages as valid for federal purposes. All of the lawyers did very well. The stand-out, in my mind, was Paul Clement, who has had a busy few weeks, arguing in favor of DOMA. Whatever you think of his politics, he’s a terrific advocate. His best example: in the past, many states did not permit interracial marriage. Surely Congress could have recognized interracial marriages for federal purposes even if the state did not recognize the marriages for state purposes? This is classic jiu-jitsu, and it brought his strongest theme to the fore: in his view gay marriage should be a subject for legislation, not constitutional lawmaking. But of course the law’s opponents had very strong arguments, focusing particularly on the rationale or lack of rationale for the statute, which after all does nothing except deprive gay couples of certain federal benefits. Surely the money that is saved cannot count as a sufficient justification, since otherwise Congress could deprive gay people of any federal benefits, whether or not a marriage was involved.

The Belfast Project Case

Now to the main event. I managed to get a seat in the courtroom after the scrum from the DOMA case had cleared. The whole gang was there. Ed Moloney in person. Carrie Twomey. My esteemed fellow-blogger Chris Bray. Carol Rose, director of the ACLU. The lawyers for Boston College. You get the picture.

Summary of the Argument

Eamon Dornan, Moloney & McIntyre’s lawyer, went first. He had a very workmanlike argument, though at times he strayed outside the record, once drawing a question on that point from Chief Judge Lynch. His basic themes were that Moloney & McIntyre had a real fear of bodily harm that gave them a sufficient stake in the litigation, and that the court should apply balancing tests to decide whether Moloney & McIntyre had a privilege that could block the subpoena. The only real questioning he faced was from Judge Torruella, who suggested that he thought there was no reporter’s privilege and that if there was no reporter’s privilege, there could not really be an academic’s privilege either. Dornan also suggested that the court should apply the Intel factors, familiar to readers of this blog as the factors that apply to requests for judicial assistance under 28 U.S.C. § 1782.

I’ve won appeals and I’ve lost appeals, and I know from experience that appellate argument is very, very hard work. So I don’t want to come down too hard on the government’s lawyer, Barbara Healy Smith. But I don’t think she put the government’s best foot forward. She started off an argument about just how narrow the issues on appeal were, which was a fine strategy, but Chief Judge Lynch quickly indicated that her real interest was not in the procedural issues surrounding the motion to intervene or the MLAT, but instead the underlying First Amendment issue, the issue that I have described before as the real toss-up. Smith had some trouble taking the judge’s hint about what points she should focus on. When she began talking about the reporter’s privilege cases, she made the point that it was BC, not Moloney & McIntyre, that had made the promise of confidentiality. Judge Lynch cut her off and said: “That goes to standing.” Smith still didn’t take the hint and began to argue about the lack of evidence that Moloney faced a risk of harm. Again, Chief Judge Lynch reminded her to assume for the sake of argument that Moloney had standing. Finally, Smith made the government’s basic First Amendment case: in a criminal case, there is no First Amendment privilege to avoid giving evidence that would incriminate someone else. But when Chief Judge Lynch wanted her to clarify whether she was stating that as a bright-line rule or whether there was some balancing test, Smith avoided the question, noting that in fact Judge Young had undertaken a balancing of interests.

At this point, Judge Boudin broke in with what I thought was a very good point on the issue of intervention: How can BC be said to represent Moloney & McIntyre’s interests when it is not even appealing the decision on the Dolours Price and Brendan Hughes materials? This sparked some laughter from the side of the courtroom where the Moloney & McIntyre partisans were sitting.

The argument then returned to the question whether the government was advocating a bright-line rule or rather a weighing of interests. Smith again didn’t really answer, noting only that she couldn’t think of a case where a balancing of interests would lead to a different outcome than a per se rule.

Judge Torruella asked why the language of Rule 24, which refers to the intervenor’s “interest”, wasn’t sufficient to give Moloney & McIntyre standing as intervenors. Smith responded that McIntyre had no constitutional protections, as he was an alien outside the United States, and that Moloney had not really alleged a risk of harm in his affidavit. Chief Judge Lynch responded that the cases about aliens abroad were mostly immigration cases, and that in any event the existence of the Belfast Project, and Moloney & McIntyre’s involvement in it, had been known for a while. But Chief Judge Lynch pointed out that Moloney & McIntyre had argued that the risk of harm was now much worse than it had been.

Smith ended with what I think is a very strong point: there is no First Amendment privilege of a third party who is not a holder of the information. In other words, BC may or may not have a claim, but Moloney & McIntyre do not. But the force of her argument was somewhat weakened when she did not have a pithy response to Chief Judge Lynch’s question about what the government’s position would be if BC were arguing its case today. She said that the government’s interests would outweigh BC’s interest, as the case involved a serious criminal investigation, and thus apparently conceding that the government was not seeking adoption of a bright-line rule.

My take

I was surprised by how well the arguments seemed to go for Moloney & McIntyre, though of course it is a mistake to try to read the tea leaves too closely after an appellate argument. My view throughout the case was that there was a really interesting First Amendment nugget that could come out either way, but that Moloney & McIntyre’s claims should fail. I still do think their claims under the MLAT will fail—the language of the treaty is clear and the judges did not seem interested in the issue—but I expected the judges to focus on the fact that the documents were BC’s not Moloney & McIntyre’s. Even if they have sufficient interests to intervene, could Moloney & McIntyre have interests sufficient to give them standing to assert the First Amendment claims? But it could be that when the judges asked Smith to assume for the sake of argument that Moloney & McIntyre have standing, they were not showing their hand on that issue but simply focusing attention on what they thought was the juicier issue, namely the First Amendment issue.

Documents

Here, by the way, are the briefs from the case:

• Moloney & McIntyre’s opening brief
• The government’s brief
• Moloney & McIntyre’s reply brief
• The ACLU’s amicus brief

Photo credits: David Shankbone; Patricia Drury (license)