Comments on: The First Circuit’s Belfast Project Decision: Analysis

By: Belfast Project: Moloney & McIntyre Seek A Rehearing | Letters Blogatory

Thu, 23 Aug 2012 10:01:16 +0000

[…] As expected, Ed Moloney and Anthony McIntyre have sought a rehearing in the Belfast Project Case. They seek both a rehearing by the panel and a rehearing en banc. […]

By: Belfast Project: Is A Petition For An En Banc Rehearing A Waste Of Time? | Letters Blogatory

Mon, 23 Jul 2012 10:01:20 +0000

[…] previously opined that Moloney & McIntyre’s next move was likely to be a petition for a rehearing en banc, […]

By: Ted Folkman

Ted Folkman — Mon, 09 Jul 2012 02:01:03 +0000

In reply to Max Kennerly. I guess we'll find out!

By: Max Kennerly

Max Kennerly — Mon, 09 Jul 2012 01:44:42 +0000

In reply to Ted Folkman.

I don’t see a conceptual difference. In both, you are permitting a private party who serves a socially useful purpose (journalist, historian, et cetera) to hold information provided by someone else in confidence because that person and the journalist/historian believes the information would substantially contribute to society.

I think the First Circuit’s opinion is defensible, but I don’t think it’s correct. They had ample opportunity to protect this project — which looks like it will have far, far more value to society than some silly “on background” leak by a self-interested political deputy — and they simply chose not to do so. I hope en banc takes a broader view of the issue.

By: Ted Folkman

Ted Folkman — Mon, 09 Jul 2012 01:10:54 +0000

In reply to Max Kennerly. Max, you may be right about what the outcome should have been had the First Circuit been writing on a blank slate. But it seems to me that given the state of the law on the supposed reporter's privilege, M&M were not too likely to succeed. The reporter's privilege to refuse to name a source exists so that the reporter can bring the source's information to the public's attention. Here, the researchers wanted to assert a privilege to keep the source's information from the public. The reporter's privilege exists when the source's identity is unknown to the public. Here, there's no question about the identity of one of the major sources, Dolours Price. So it seems to me that the case for a privilege here is weaker than the case for a reporter's privilege, and Branzburg makes M&M's case a difficult one indeed.

By: Max Kennerly

Max Kennerly — Mon, 09 Jul 2012 00:52:09 +0000

The court’s statement, “the choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers,” is unfair, insulting, and downright ignorant and anti-intellectual. You can use a similarly pithy statement to blow up any privilege and deny any right, e.g., “the choice to investigate criminal activity belongs to the government and is not subject to veto by a paid advocate,” and yet we treat that privilege as sacrosanct.

History is, IMHO, essential to civilization, and essential for societies to move beyond violent internal conflicts, and this information would not exist but for genuine efforts by the participants to leave that history for future generations on both sides. There is good reason to make exceptions to “everyman’s evidence” and protect that sort of socially-beneficial activity.

By: Ted Folkman

Ted Folkman — Sun, 08 Jul 2012 20:13:04 +0000

Ed Moloney has a "glass half full" commentary on the decision at The Broken Elbow. He argues that now that the court has affirmed the decisions approving the subpoenas, the Attorney General and the Secretary of State are free to refuse to continue to provide judicial assistance to the British. Of course, they have been free to refuse to assist the British all along, though perhaps at the cost of causing the United States to violate its obligations under the treaty. But that's the argument, anyway. He also points out that Judge Toruella, in his concurring opinion, noted that the Troubles were a political conflict, though even Judge Toruella didn't think that mattered to the outcome of the case. Moloney and McIntyre have also confirmed my prediction about their next move by stating that they are considering a petition for an en banc hearing. Chris Bray also has a post up about the new decision.