We have been closely following the Boston College Project Belfast case. If you haven’t been following, this is the case in which the government, at the request of the UK authorities, issued a subpoena to Boston College’s Project Belfast for oral histories that BC researchers took from participants in the Northern Ireland conflict. The researchers assured the interviewees that their stories would be kept confidential. The government’s subpoena tests the validity, or maybe the wisdom, of that promise.

In his prior order, Judge Young ordered BC to produce the oral histories to the court for an in camera inspection. On December 27, the judge, having reviewed the materials, decided that BC should be required to produce them to the government. His order does not provide any detailed explanation for his reasoning, which is understandable given the sensitivity of the materials. The order, however, concerned only the first of the two subpoenas, and thus required only the turnover of the Dolours Price interviews.

The unsuccessful intervenors, Ed Moloney and Anthony McIntyre, have appealed to the First Circuit from the order denying their motion for leave to intervene, and from “all subsequent Orders relating thereto.” (Question: can the unsuccessful intervenors appeal from anything other than the denial of their motion for leave to intervene? BC has not (yet) appealed. The documents are now in the hands of the US Attorney, who is acting on behalf of the UK authorities.

McIntyre and Moloney asked Judge Young to stay his order pending an appeal, but the judge promptly denied their request. However, the First Circuit was more receptive, staying Judge Young’s decision and forbidding the US Attorney from releasing the materials to the UK authorities. We will keep you posted of further developments.

I have editorialized about the motion for leave to intervene, which I think lacks merit, but I have not really editorialized about the merits of the underlying case. If Boston College does not appeal, then it seems to me that Moloney and McIntyre are unlikely to prevail in the First Circuit, since they need first to show that they are entitled to intervene. I’ve given my reasons for believing that they cannot make such a showing here and in later posts.

If Boston College does appeal, then it’s a closer call, but in my view the government should prevail. First, what privilege would an appeal assert? It seems clear that the reporter’s privilege—if it exists—does not apply here, since the issue isn’t protecting confidential sources for the purpose of informing the public. Dolores Price is hardly a confidential source: everyone knows that it’s her interviews that are in issue. Second, it seems to me that if Judith Miller didn’t prevail in the Valerie Plame affair, then Boston College shouldn’t prevail here. The best case for BC is Cusumano v. Microsoft, 162 F.3d 708 (1st Cir. 1998), but it seems to me that the general attitude towards First Amendment privileges to refuse to disclose material in response to a government subpoena has become significantly more hostile in the years since then.