I want to give my own views on some issues addressed in recent editorials on the Belfast Project case. In my view, many of the points out there in the blogosphere are wrong or at least arguably wrong, and I think it is worthwhile to put another view out there to let people interested in the case see both sides of the arguments. In the list that follows, I print a passage or summarize a point from one of the recent editorials and then give a contrary view.

1. “U.S. citizens facing subpoenas from foreign governments have fewer rights and constitutional protections than if the subpoenas had originated from their own government.” (Ed Moloney, 8/2/12). The First Circuit held that Moloney & McIntyre had no standing to argue that the issuance of a subpoena under the mutual legal assistance treaty between the US and the UK violated the MLAT. But in an ordinary domestic criminal case, a witness has no power to prevent the grand jury from issuing a subpoena in the first instance, so it seems that witnesses in MLAT cases are in precisely the same position with respect to issuance of a subpoena as witnesses in any federal criminal case. Now, once a subpoena has issued, the witness can claim that the subpoena should not be enforced because, for example, the witness has a privilege not to answer the questions the government wants to pose. But this is true whether the subpoena was issued by a grand jury or by the government pursuant to an MLAT.¹Note that under the MLAT (art. 8(3)), a claim of privilege under the law of the foreign state does not bar the taking of the evidence. See, e.g., In re Erato, 2 F.3d 11 (2d Cir. 1993). If Moloney & McIntyre’s privilege arguments had been sound, they could have defeated the subpoena even though it resulted from an MLAT rather than from a grand jury investigation. So I think this point is just plain wrong.
2. Justice Powell’s concurring opinion in Branzburg v. Hayes, 408 U.S. 665 (1972), establishes that there is a “reporter’s privilege” under the First Amendment. (Harvey Silverglate, 8/13/12). It’s true that some courts cite the concurrence in Branzburg as authority for the existence of a qualified “reporter’s privilege” in certain cases. See, e.g., Chevron Corp. v. Berlinger, 629 F.3d 297, 306-07 (2d Cir. 2011) (qualified privilege in a civil, not a criminal, case). But Silverglate fails to acknowledge recent cases (aside from the First Circuit’s decision, of course) flat-out holding that there is no reporter’s privilege to refuse to answer a grand jury subpoena. The most notable is In re Grand Jury Subpoena, 438 F.3d 1141 (D.C. Cir. 2006), the Judith Miller/Scooter Libby case. People interested in this issue should read Judge Sentelle’s opinion, which seems to me more or less unanswerable and which I reprint here with some citations omitted:
   

   In his opinion below, the Chief District Judge held that “a reporter called to testify before a grand jury regarding confidential information enjoys no First Amendment protection.” Appellants [Judith Miller et al.] argue that “this proposition of law is flatly contrary to the great weight of authority in this and other circuits.” Appellants are wrong. The governing authority in this case, as the District Court correctly held, comes not from this or any other circuit, but the Supreme Court of the United States. In Branzburg v. Hayes, the Highest Court considered and rejected the same claim of First Amendment privilege on facts materially indistinguishable from those at bar.

   Like the present case, Branzburg was a consolidated proceeding involving multiple contempt proceedings against news media defendants. The named petitioner, Branzburg, had been held in contempt in two related proceedings, arising from one extended task of investigative journalism. The first arose from an article published by his employer, a daily newspaper, describing his observation of two Kentucky residents synthesizing hashish from marijuana as part of a profitable illegal drug operation. The article included a photograph “of hands working above a laboratory table on [ellipsis] a substance identified [ellipsis] as hashish.” A Kentucky grand jury subpoenaed the journalist who “refused to identify the individuals he had seen possessing marihuana or the persons he had seen making hashish from marihuana.” Branzburg claimed privilege both under the First Amendment of the United States Constitution and various state statutory and constitutional provisions. He was held in contempt and the proceeding eventually made its way to the Supreme Court.

   The second case involving petitioner Branzburg arose out of a later article published by the same newspaper describing the use of drugs in Frankfort, Kentucky. According to the article, this publication was the product of two weeks spent interviewing drug users in the area. The article further reported that its author had seen some of his sources smoking marijuana. The article related numerous conversations with and observations of unnamed drug users. Branzburg was again subpoenaed to appear before a Kentucky grand jury “to testify in the matter of violation of statutes concerning use and sale of drugs.” Branzburg moved to quash the subpoena. The motion was denied. The journalist sought the protection of the Kentucky Court of Appeals by way of mandamus and prohibition, claiming “ that if he were forced to go before the grand jury or to answer questions regarding the identity of informants or disclose information given him in confidence, his effectiveness as a reporter would be greatly damaged.” The Kentucky courts rejected Branzburg’s claim of a First Amendment privilege. Again, he petitioned for certiorari in the Supreme Court.

   The consolidated petitions in Branzburg also included In re Pappas. Petitioner Pappas was a television newsman-photographer for a Massachusetts television station. On July 30, 1970, during a time of civil unrest in New Bedford, Massachusetts, he gained entrance to the headquarters of the Black Panther Party, upon his agreement not to disclose anything he saw or heard inside the headquarters. Subsequently, he was subpoenaed to appear before a Massachusetts grand jury. Although he appeared and answered other questions, he refused to answer any questions about what had taken place inside the Black Panther headquarters, “claiming that the First Amendment afforded him a privilege to protect confidential informants and their information.” The Massachusetts trial court denied his motion to quash made on First Amendment and other grounds and ruled that the journalist “had no constitutional privilege to refuse to divulge to the grand jury what he had seen and heard, including the identity of persons he had observed.” Like Branzburg, Pappas petitioned for certiorari to the United States Supreme Court.

   In the final petition consolidated in the Branzburg proceedings, the Court considered the petition for certiorari of the United States from a decision of the Ninth Circuit Court of Appeals, Caldwell v. United States, in which the circuit had recognized a qualified testimonial privilege for newsmen arising from the First Amendment and allowing a reporter claiming protection under the privilege to refuse to testify before a grand jury investigating allegations of violations of numerous criminal statutes by the Black Panther Party in California. The reporter in Caldwell had engaged in investigative journalism directed toward the Black Panthers at a time when they were suspected of such crimes as making threats against the President of the United States and a possible conspiracy to assassinate the President, as well as interstate travel to incite rioting and the commission of mail frauds and swindles. He claimed to have obtained information from confidential informants.

   As can be seen from the account of the underlying facts in Branzburg, there is no material factual distinction between the petitions before the Supreme Court in Branzburg and the appeals before us today. Each of the reporters in Branzburg claimed to have received communications from sources in confidence, just as the journalists before us claimed to have done. At least one of the petitioners in Branzburg had witnessed the commission of crimes. On the record before us, there is at least sufficient allegation to warrant grand jury inquiry that one or both journalists received information concerning the identity of a covert operative of the United States from government employees acting in violation of the law by making the disclosure. Each petitioner in Branzburg and each journalist before us claimed or claims the protection of a First Amendment reporter’s privilege. The Supreme Court in no uncertain terms rejected the existence of such a privilege. As we said at the outset of this discussion, the Supreme Court has already decided the First Amendment issue before us today.

   In rejecting the claim of privilege, the Supreme Court made its reasoning transparent and forceful. The High Court recognized that “the grand jury’s authority to subpoena witnesses is not only historic … but essential to its task.” The grand juries and the courts operate under the “longstanding principle that ‘the public has a right to every man’s evidence,’ except for those persons protected by constitutional, common law, or statutory privilege.” The Court then noted that “the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination.” The Court then expressly declined “to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy.” In language as relevant to the alleged illegal disclosure of the identity of covert agents as it was to the alleged illegal processing of hashish, the Court stated that it could not “seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it.”

   Lest there be any mistake as to the breadth of the rejection of the claimed First Amendment privilege, the High Court went on to recognize that “there remain those situations where a source is not engaged in criminal conduct but has information suggesting illegal conduct by others.” As to this category of informants, the Court was equally adamant in rejecting the claim of First Amendment privilege:

   [W]e cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future.

   The Branzburg Court further supported the rejection of this claimed privilege by the commonsense observation that “it is obvious that agreements to conceal information relevant to the commission of crime have very little to recommend them from the standpoint of public policy.” While the Court recognized the right of the press to abide by its agreements not to publish information that it has, the Court stated unequivocally that “the right to withhold news is not equivalent to a First Amendment exemption from an ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function.”

   We have pressed appellants for some distinction between the facts before the Supreme Court in Branzburg and those before us today. They have offered none, nor have we independently found any. Unquestionably, the Supreme Court decided in Branzburg that there is no First Amendment privilege protecting journalists from appearing before a grand jury or from testifying before a grand jury or otherwise providing evidence to a grand jury regardless of any confidence promised by the reporter to any source. The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter.

   Despite the absolute and unreversed answer to the question of constitutional privilege by the Supreme Court in Branzburg, appellants nonetheless persist in arguing that the District Court erred in concluding that journalists subpoenaed to reveal their confidential sources before federal grand juries enjoy no First Amendment protection. They base this argument on the concurring opinion of Justice Powell in Branzburg and a case from this circuit, Zerilli v. Smith. These authorities, either separately or together, provide no support for the existence of such a privilege protecting reporters subpoenaed to a grand jury. Appellants’ argument concerning Justice Powell’s concurrence begins with the fact that the decision of the Supreme Court was reached by a 5-4 divided Court. Thus, each of the justices joining in the result was essential to the result. Therefore, appellants argue, it is the opinion of the least encompassing justice which determines the precedent set by the decision rather than the decision which appellants style a “plurality” opinion authored by Justice White. In support of this proposition, they advance an argument that first admits that when the opinion of an individual justice is not needed for a majority his separate opinion is not a gloss giving authoritative definition to the majority opinion in which he did not join, but rather is no more than his separate thoughts, and “the meaning of a majority opinion is to be found within the opinion itself.” But, appellants argue, when the individual justice is needed to constitute the majority, “the opinion is not a majority except to the extent that it agrees with his views. What he writes is not a ‘gloss’ but the least common denominator.” That is to say, the separate opinion “cannot add to what the majority opinion holds, binding the other four justices to say what they have not said; but it can assuredly narrow what the majority opinion holds, by explaining the more limited interpretation adopted by a necessary member of that majority ….” (Scalia, J. [ellipsis], dissenting).

   [ellipsis] [E]ven if we accept Justice Scalia’s analysis at full value, it does not help appellants in this case. Justice Powell’s concurring opinion was not the opinion of a justice who refused to join the majority. He joined the majority by its terms, rejecting none of Justice White’s reasoning on behalf of the majority. He wrote separately “to emphasize” what seemed to him “to be the limited nature of the Court’s holding.” Justice White’s opinion is not a plurality opinion of four justices joined by a separate Justice Powell to create a majority, it is the opinion of the majority of the Court. As such it is authoritative precedent. It says what it says. It rejects the privilege asserted by appellants.

   Nonetheless, appellants urge that Justice Powell must have been contemplating the creation or recognition of some further sort of First Amendment privilege for reporters asserting confidential sources, else why would he have bothered writing? To that, the United States replies that by its terms Justice Powell’s opinion recognizes only that

   if the newsman is called upon to give information bearing only on a remote and tenuous relationship to the subject investigation, of if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement he will have access to the court on a motion to quash and an appropriate protective order may be entered.

   Therefore, the United States contends, Justice Powell, who expressed no disagreement with the majority about the existence of a constitutional privilege, only emphasized that there would be First Amendment protection in cases of bad faith investigations. Appellants counter that Justice Powell could not have meant what the United States argues, as this would have given reporters no more protection than other citizens. However, they never make it clear why they are convinced that Justice Powell must have intended to give reporters more protection than other citizens. The Constitution protects all citizens, and there is no reason to believe that Justice Powell intended to elevate the journalistic class above the rest.

   In any event, whatever Justice Powell specifically intended, he joined the majority. Not only did he join the majority in name, but because of his joinder with the rest of a majority, the Court reached a result that rejected First Amendment privilege not to testify before the grand jury for reporters situated precisely like those in the present case. As we noted above, there is no factual difference between Branzburg and the present case. If Justice Powell in any way meant to afford more protection than was afforded by the rest of the majority, that protection cannot possibly extend to appellants as Branzburg is directly on point and reached a result in which Justice Powell joined, rejecting the applicability of constitutional privilege.

   This is a more elaborated version of the First Circuit’s decision in the Moloney & McIntyre case, but it is essentially the same reasoning: Branzburg forecloses a First Amendment privilege to refuse to respond to a grand jury subpoena. Now, Branzburg doesn’t have to be the last word. If you think that there should be a reporter’s privilege in criminal cases, or an oral historian’s privilege, then ask your representative and senators to pass a reporter’s shield bill such as the bill Senator Specter proposed in 2009.

3. The McConville murder was a political crime, and the US shouldn’t aid in its prosecution (Chris Bray, 8/16/12). This is arguably (but not indisputably) correct as far as it goes. The MLAT gives the Attorney General discretion not to execute a request for judicial assistance if the United States regards the offense as “of a political character.” But it is the Attorney General, not the court, that has this discretion. So Moloney & McIntyre may well have a good political argument addressed to the Attorney General—and they’re making that argument. But the claim that the court made a mistake is, I think, wrong.
4. Boston College’s “decision to hand the project’s transcripts over to U.S. District Judge William Young for in chambers review [denied] the scholars an opportunity to commit an act of civil disobedience to protect their sources (and themselves)”(Harvey Silverglate 8/13/12). I think this point is confused. Reporters and scholars sometimes do go to jail rather than reveal their sources. But if you want to be a Hero of the First Amendment, then it’s important that you keep the identity of your source to yourself in the first instance. If Judy Miller had taped her interview with Scooter Libby and then deposited it with the New York Times, and the government knew that fact, you can be sure, I think, that the government would have issued a subpoena to the New York Times Co. Indeed, in the Judy Miller case, there was another reporter, Matthew Cooper, who wrote for Time Magazine, who also received a subpoena. The government also subpoenaed Time, Inc., itself. After the case was finally decided in the courts, Time produced the documents to the government. And this is hardly surprising:
   

   Institutions such as colleges and universities, unlike individuals, have little leeway in disobeying a court order, whether on grounds of conscience or for any other reason. A judge, after all, has the power to impose rapidly escalating fines that could bankrupt even the wealthiest organization; the trustees of most institutions would in almost every situation conclude that fiduciary duty precludes letting the organization collapse merely because some principle is at stake. This is why organizations rarely should be trusted with the possession of absolutely confidential materials that might be subject to subpoena by governmental authorities.

   Who do you think wrote that? Harvey Silverglate.

   So it seems to me just wrong to suggest that Moloney & McIntyre could have had any expectation that Boston College, once in possession of the documents and after the subpoena had issued, would have risked contempt sanctions by delivering the materials back to Moloney & McIntyre to allow M&M to be Heros of the First Amendment. If Moloney & McIntyre wanted to preserve their power to be First Amendment martyrs, they should have kept the documents to themselves, and out of the hands of Boston College, in the first instance.

Photo credit: Boston Starbucks Rebel

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  Note that under the MLAT (art. 8(3)), a claim of privilege under the law of the foreign state does not bar the taking of the evidence. See, e.g., In re Erato, 2 F.3d 11 (2d Cir. 1993).