Reply to Chris Bray

Thanks to Chris Bray for the thoughtful post on the Belfast Project case. I want to respond with some thoughts about the law of evidence and the law of civil disobedience that Chris’s comments have prompted.

Why It Might Make Sense To Reject An “Oral Historian’s Privilege”

I’ve said before that I think the question whether the courts will recognize a privilege to refuse to disclose oral histories is a toss-up. The question probably won’t be presented cleanly in the Belfast Project case because the folks to whom the privilege probably belongs, if its exists, aren’t asserting it. Indeed, even Ed Moloney and Anthony McIntrye, the two folks who are, as of now, continuing the fight in the courts, don’t really focus on the privilege issue, but rather on the more narrow and technical issue of whether the Attorney General complied with the mutual legal assistance treaty under which the UK authorities have sought American judicial assistance. All that being said, here are some thoughts on why the “oral history privilege” could—and maybe should—lose in court.

John Henry Wigmore
John Henry Wigmore
John Henry Wigmore, the great scholar of the common law of evidence, wrote:

For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.

* * *

In general, then, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege. This common law rule is not questioned today. No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.

8 Wigmore on Evidence §§ 2192, 2286 (McNaughton Rev.).

Anyone who has watched a juicy Congressional hearing or an episode of Law and Order knows that there are indeed legal rules—“privileges”, in the lingo—that allow witnesses to refuse to testify (or, as in the Belfast Project case, to refuse to turn over documents in response to a court order). There is, for example, the attorney-client privilege, which allows clients to refuse to testify about communications with their lawyers. There is the spousal privilege, which allows one spouse to refuse to testify about communications with the other. There is the privilege against self-incrimination, which allows a witness to refuse to answer questions if the answer would tend to incriminate him. And so on.

Why do we have these privileges? Because we think the benefit obtained by allowing certain communications to be kept confidential outweighs the harm to the administration of justice that occurs when otherwise relevant evidence is excluded from a trial. (The privilege against self-incrimination is special: we also have it because the Constitution says so). But there are lots of social goods that we could obtain by creating privileges. For example, maybe people would be more candid with their physicians if their doctor-patient communications were privileged, and maybe that kind of candor would lead to better health. But the fact is that—in Massachusetts at least, where I practice law—there is no general doctor-patient privilege. So it’s clear that no every socially beneficial kind of confidentiality will be privileged in court.

The closest privilege to the “oral history privilege” that Chris Bray and others wish were applied in this case is probably the so-called reporter’s privilege, which is the privilege of a reporter to refuse to disclose the confidential source of a story he or she has published. Now, we use the term “reporter’s privilege” as though the privilege were as well-established in the law as, say, the attorney-client privilege, but that’s simply not the case. If it does exist, it’s a qualified privilege, that is, a privilege that, unlike the attorney-client privilege, can be overridden in cases of particularly pressing necessity. But let’s simply assume for the sake of argument that the law recognizes a reporter’s privilege. Do the rationales for that privilege support the notion that there should be an oral history privilege?

To my mind the two key features of the reporter’s privilege are these: (1) the source the reporter is protecting is a confidential source whose identity is unknown; and (2) the reporter has used the information the source provided to publish a newsworthy story. The basic rationale of the privilege is simple. We want to encourage people to bring information to the public’s attention by reducing the risk that they will be prosecuted, or fired from their jobs, or whatever, if they speak to the press. The public benefit that results from having more information publicly available is said to outweigh whatever benefits result from giving the government or private parties the power to hold a leaker to account.

How does an oral history privilege compare? Well, in the Belfast Project case at least, some of the people who provided the information to the historians—Dolours Price in particular—are publicly known. The question isn’t whether she spilled the beans, but whether she spilled lima beans or navy beans, so to speak. (Of course, other of the interviewees are unknown at present). And more importantly, Moloney & McIntyre are not seeking to bring the information at issue to the public’s attention, but to shield it from public view until the interviewees’ deaths. Of course, the idea is to bring the information to the public’s notice some day in the future, but there seems to me to be a time value of information. It’s better, from a First Amendment perspective, to make the information available sooner rather than later.

So I think that the justifications for an oral history privilege in this case are significantly weaker than the justifications for a reporter’s privilege, and as I noted, it’s not clear that a reporter’s privilege exists in the first place; if it does exist, it exists in a weak form. These are some of the reasons why I think that the oral history privilege might not, in the absence of legislation, be protected by the common law. But as I say, there are real policies that favor the privilege, so the issue (if properly presented) could come out either way in an appellate court. But I don’t think that the question of privilege is really properly presented, since the only parties now pressing the point, Moloney and McIntyre, likely lack standing.

Civil Disobedience

Civil disobedience is largely a matter of conscience, and I think it’s admirable when people prompted by sincere conscientious beliefs and willing to accept the consequences engage in civil disobedience.

But I have drawn a distinction between real, live human beings and institutions. What am I talking about? Well, as a first cut, some have called for “Boston College” to engage in civil disobedience. It’s not entirely clear what this means in practice. “Boston College” is an impersonal institution that only acts through people. “Boston College” disobeying the law boils down to particular people disobeying the law. If “Boston College” is to disobey the law by, say, burning the Belfast Project interviews, what real human being is going to have the job of putting match to paper?

But let’s assume that we understand what is meant when someone calls for “Boston College” to engage in civil disobedience. And let’s assume that the punishment is, for example, a significant monetary penalty that would, if imposed, interfere with the school’s educational mission. What should the school do?

Rep. Gerald B.H. Solomon
Rep. Gerald B.H. Solomon
This reminds me of a debate that was current when I was a student. The Solomon Amendment was a law that allowed the Secretary of Defense to deny federal grants, including research grants, to any educational institution that that prohibits military recruiting or ROTC programs on campus. Many schools took a principled stand against allowing military recruiting on campus on the grounds that the military—this was while the “Don’t Ask, Don’t Tell” law was still on the books—violated the schools’ anti-discrimination policies. Harvard Law School was among this group, but when the Secretary of Defense announced that he intended to enforce the Solomon Amendment and deprive Harvard of all federal funding, Dean (now Justice) Elena Kagan decided to make an exception to the School’s anti-discrimination policy rather than put all of Harvard’s federal funds at risk. She was criticized by some for an unprincipled decision that put money ahead of ideals. But I think she made the right decision. Anti-gay discrimination is an important issue. But there are lots of important issues, and the school has responsibilities to lots of real human beings: its employees, its students, and so forth. This is the reason why I suggested that the idea of civil disobedience doesn’t apply to institutions in the same way it applies to real people. And I think that idea is both principled and practical.

Photo credits: The Harris & Ewing Collection of the Library of Congress and Wikimedia Commons

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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