As predicted, Ed Moloney & Anthony McIntyre have filed a motion asking the First Circuit to stay its mandate pending the filing of a petition to the Supreme Court for a writ of certiorari. The motion is solid and has, I think, a good chance of success. From a very practical perspective, production of the Dolours Price material would moot that portion of Moloney & McIntyre’s case, and they claim to be at risk of bodily harm if the material is produced to the UK authorities.
On the other hand, from the doctrinal perspective, Moloney & McIntyre have to persuade the court that their petition to the Supreme Court will present a “substantial question.” Here I think much of their argument is weak. They rehash their arguments about the correct construction of the MLAT, but with due respect the their counsel, the MLAT is pretty unambiguous, in my view anyway. These are the weakest of Moloney & McIntyre’s arguments, and if I were them I would abandon them to focus on the First Amendment issues. Moloney & McIntyre also assert that they were deprived of their right to be heard. This argument follows the ACLU’s argument in its proposed amicus brief, which I covered on August 31. Try as I might, I don’t get this argument—Moloney & McIntyre were heard. It’s difficult to see what more they think they are entitled to, unless they think that it is always impermissible to dispose of a First Amendment claim on the pleadings, which I think cannot be right.
Their best argument is their attempt to show a circuit split in how the courts of appeals interpret the Supreme Court’s Branzburg decision. I think this is the argument most likely to appeal to the court, and potentially to Justice Breyer if the First Circuit denies the motion for a stay. While I have suggested on a number of occasions that I don’t think there is a First Amendment privilege in the context of this case, I’ve also noted that the issue could come out either way.
We’ll keep an eye on this tail end of the First Circuit proceedings. In other Belfast Project news, I understand that there is to be a hearing today in Belfast on McIntyre’s motion for an injunction. I will provide more details as they become clear.