The government has filed its brief in the appeal Ed Moloney and Anthony McIntyre took from Judge Young’s decision denying their motion for leave to intervene in Boston College’s attempt to quash the government’s subpoenas for the Belfast Project interviews.
The government’s statement of the issues outlines its arguments pretty simply:
1. The intervention issue presented in appeal No. 11-2511 is not mooted by the appeal from dismissal of the separate civil action, No. 12-1159; rather, resolution of the intervention issue is dispositive of the issues presented on appeal.
2. The district court did not abuse its discretion in denying appellants’ motion to intervene in the proceeding to quash the government’s subpoenas.
3. Because appellants were properly denied intervention and Boston College did not appeal the district court’s rulings on the motion to quash, appellants’ challenges to those rulings are not before this Court; nonetheless, appellants and amicus fail to establish any error in the district court’s ruling that the documents should be turned over.
4. The district court’s conclusion that appellants were not entitled to intervention to present their claims against the Attorney General is preclusive of their separate civil action; alternatively, the civil action was properly dismissed, including because, as the district court found, the Attorney General properly discharged his obligations.
The biggest surprise to me is the first point. I expected the government to say that the appeal in the intervention case was moot because of the judge’s decision in the second case, and that Moloney & McIntyre’s claim in the second case failed on the merits. Instead, the government says that the judge was right to deny them the right to intervene, and that the his decision, which addressed the merits of some of the claims, has claim preclusive effect, effectively barring Moloney & McIntyre from bringing the claims in the second case.
The government argues, correctly in my view, that Moloney & McIntyre have no right to enforce the provisions of the US/UK MLAT. The closer question is whether Moloney & McIntyre have an interest in the underlying First Amendment question—whether they have a First Amendment privilege to keep BC from turning over the documents. The government disposes of McIntyre’s claims by pointing out that he is an alien who lives outside the United States and that he therefore has no First Amendment rights, citing Kleindienst v. Mandel, 408 U.S. 753 (1972). The government asserts that Moloney does not really make out a sufficient claim that he is at risk of physical harm or a legal argument that such a risk is sufficient to give him standing. The government asserts that Moloney lacks standing to assert that the subpoenas pose a risk to the enterprise of oral history because he cannot point to any effect on himself in particular. Most boldly, the government goes for it and argues that there simply is no First Amendment academic’s privilege:
There is no recognized privilege for reporters to shield their sources or refuse to testify in a criminal grand jury investigation, let alone a recognized “academic privilege” that may be invoked to withhold evidence. … Simply put, the obligation to provide evidence applies to journalists and their sources [citing the Judith Miller case].
There is more in the brief to be digested—it is worth a read. I anticipate returning to this case when Moloney & McIntyre file a reply brief, and I hope to be able to cover the hearing for you (though not via liveblog—my request to the First Circuit to permit liveblogging was, sadly, denied).