A Review of Palys and Lowman on the Belfast Project

Several readers have gotten in touch to tell me that I ought to write about the new article by Ted Palys and John Lowman, Defending Research Confidentiality “To The Extent The Law Allows:” Lessons From the Boston College Subpoenas. The readers seem to be hoping for some kind of major-league smackdown of the article. So by popular demand, I am going to give my thoughts on the article, but I’m afraid I’m going to disappoint some readers when I say that I think the article is, well, not that bad. Palys and Lowman seem clearly to be partisans, but they are basically fair partisans.

Palys and Lowman write quite a bit about the law in ways that I think are not that useful. For example, they claim that by acknowledging, as BC claims to have done, that a promise of confidentiality is only good to the extent the law permits, BC had somehow made it less likely that it could prevail on a claim of privilege in court. Really? In my opinion, the courts would have acted exactly as they did even without the “to the extent the law permits” language. Making the promise of confidentiality super-duper unconditional does nothing to alter the underlying problem with the case, which is, as the First Circuit found, that there is no First Amendment privilege in these circumstances, full stop. Palys and Lowman also suggest that perhaps there was a legal requirement for IRB review in the Belfast Project case, but it’s not clear that they’re right about the law on that point. Last, Palys and Lowman are strangely critical of Boston College’s decision to resist Ed Moloney’s call to spirit the Project materials out of the United States after the first subpoena was served (the first subpoena, recall, covered only the Dolours Price and Brendan Hughes materials). I don’t know the details of the advice Boston College got from its lawyers, but here is what I wrote to Chris Bray at the time:

Well, look, I don’t practice criminal law and I’m not giving legal advice, and I wish Ed Moloney well. But when I read that “the destruction of documents in anticipation of a subpoena can also constitute obstruction of justice”, David Cylkowski & Ryan Thornton, Obstruction of Justice, 48 Am. Crim. L. Rev. 955, 967 n.64 (2011) and cases cited, I get worried. Talk to your lawyer, is all I’m saying!

But the main point of their article is not legal. Palys and Lowman are right, I think, to say that the law aside, something went seriously wrong in the lead-up to the Belfast Project that perhaps could have been fixed had someone—BC, according to them, BC and the researchers, according to me—been more forthcoming with the study participants about the risks of a subpoena. We can disagree about whether Moloney & McIntyre were partly to blame, or even, as I have argued before, whether the participants themselves were partly to blame, but surely researchers will take the Belfast Project as a cautionary example in the future, and that’s Palys and Lowman’s strongest point.

I find their other main non-legal point less convincing. They suggest that Moloney & McIntyre took an “ethics first” approach to the controversy while Boston College took a “law of the land” approach. This way of looking at things is problematic for me for a lot of reasons. First, it discounts, by its very language, the idea that following the law itself may be ethically positive. Second, I don’t think Palys and Lowman take seriously a point I made in a discussion with Chris Bray: it is not right to ask of an institution with multiple constituencies and responsibilities to a whole community the same kind of civil disobedience that we might think an individual scholar ought to practice. In short, more power to Moloney & McIntyre for their asserted willingness to go to jail for a cause they believe in, but the bottom line—if they wanted to be Heroes of the First Amendment, they should never have let the tapes out of their own hands.

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 2012), 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.

10 thoughts on “A Review of Palys and Lowman on the Belfast Project

  1. Ted,

    Good discussion—see also:

    [Link]

    I think one point that gets lost in the legal analysis of the thing is that there are politics to it, too, and political avenues through which to pursue a solution. Moloney and McIntyre asked Irish-American groups to lobby for the withdrawal of the subpoena; BC didn’t. So the choice is not between complying with a subpoena and refusing to comply with it. There were other fights to be had, and BC declined to have them.

    I’m not disputing your legal analysis, but rather suggesting—tediously and with apologies, because I know I’ve said this many times before—that legal analysis is one important piece of a larger discussion.

    1. Chris, I agree that there’s a political issue here, and I’ve long said that politics—lobbying—is M&M’s best avenue to success. I’m not sure that lobbying in Washington, rather than Belfast or Westminster, was the way to go, but I basically agree with your point.

  2. Ted,

    Unless institutions like BC are challenged and not let off the hook—as I think you are inclined to do even if I believe you arrive at your conclusions honestly—then research will be hamstrung. Why should the powerful have less a responsibility than the powerless to engage in civil disobedience? We are drawn back to the same conclusions—let the students go to jail but not the professors. Pushover professors are somethng of a standing joke, even in academia. When this subpoena thing started out I was warned that academics are the most timid creatures imaginable, that the idea of a fight against officialdom would terrify them. Be grateful the BC professors were not in charge of the US at the time of Pearl Harbour—you would be writing these commentaries in Japanese!

    Luckily for us BC had Jack Dunn making the case for it. What a haimes he made of everything. Haven’t found a journalist yet who believes him.

    1. Well, the thing about civil disobedience is that it is supererogatory. So except in extreme cases of injustice (I don’t think this is one, even if I agreed with your underlying point), I don’t think it’s fair to criticize an individual or an institution for failing to engage in civil disobedience. I’m not saying it’s not praiseworthy to go above and beyond the call of duty in some cases, but I’m not sure it’s blameworthy not to go above and beyond the call of duty. Bottom line—it’s not fair to demand civil disobedience of anyone but yourself. That’s why I say you and Ed Moloney should have kept the materials in your own possession if you contemplated disobeying a court order requiring disclosure of the interviews.

      1. Ted,

        Why should civil disobedience be above and beyond the call of duty?

        Is it not right to make right what was made wrong? Your perspective resonates of don’t tax the rich and the powerful; they should somehow be exempt from those burdens the rest of us bear. I suppose this is how we end up with Private Jones convicted of murder and Henry Kissinger feted as a statesman. There is something intrinsically unjust about it.

        Even if you don’t feel it is an extreme case of injustice, BC’s very dishonest role in it would make certain ethical requirements of it. Even if we set aside everything else we are left with the position that BC in writing said it had taken legal guidance post-first subpoena from trained lawyers and people formally schooled in international law which reassured it that no further subpoena was possible. Really? These people schooled in international law didn’t know about MLAT?

        This leads to a conclusion that BC staff misled from the start. They were in ad lib mode as they went along giving assurances they knew they were unable to back up. So why should they escape the onus of civil disobedience and others less culpable (you disagree on that – the rich and poor alike as Anatole France said cannot sleep under the bridges of the River Siene, beg on the streets or steal food – the law treats us all equally) carry it?

        So, I think it is reasonable to criticise the powerful who because of their institutional cowardice, blatant dishonesty and strategies of displacement, seek to make others carry the can.

        Bottom line—it’s not fair to demand civil disobedience of anyone but yourself.

        Change the term civil disobedience to justice and see what a parody this becomes.

        you and Ed Moloney should have kept the materials in your own possession if you contemplated disobeying a court order requiring disclosure of the interviews.
        Which is exactly what we would have done had BC made it clear that the material could not withstand a court order. It is what we sought to do when it became clear but BC denied us the opportunity. In any event had BC made it clear there would have been no project. BC’s reason for not making it clear I suspect.

        1. Thanks, Anthony. Well, I guess I invited this, so let’s get into the political and moral theory. I could make a strong claim that except in extraordinary cases it is not only legally but morally right to obey the law because it is the law, even if it is unjust or imperfectly just (provided the law was legitimately adopted, etc.). But here I’m making a much weaker claim, namely that except in extraordinary cases it is not morally required to disobey an unjust or imperfectly just law. I am creating space, in other words, between being a hero and being a villain. In the view you express in your comment, it seems to me that everyone is always either a hero or a villain, and if you’re not a hero—if you don’t engage in civil disobedience when on some (whose?) moral theory civil disobedience is justified—then you’re a villain. I don’t think that’s the real world, nor do I think it can be justified in principle. Your view ignores the idea that some moral obligation flows from the law just because it is the law. At a minimum, I would say that a person considering whether to engage in civil disobedience, except in extraordinary cases, should at least acknowledge that he is choosing between two moral demands, no matter how strongly he feels about the justice of his cause or the injustice of the law. But you seem to reject this notion. Also, I think your view does not allow a person to weigh the cost to himself of civil disobedience, which I think any moral theory has to consider except in extraordinary cases.

          1. Ted,

            The rule of law as a general principle is fine. But so too is the right to disobey the law when in good conscience the law is unjust. Compliance can become complicity. Do we want to become complicit in a law that is unjust? Without civil disobedience black people would still be sitting at the back of the bus.

            That is not a blank check for lawlessness or an anarchist charter. But it at least poses the question of for whom does the law rule? Again Anatole France is useful here.

            except in extraordinary cases it is not morally required to disobey an unjust or imperfectly just law.

            I disagree. I think it is morally required. It is not legally required. But we would be foolish to allow law to dictate morality.

            I am creating space, in other words, between being a hero and being a villain. In the view you express in your comment, it seems to me that everyone is always either a hero or a villain, and if you’re not a hero—if you don’t engage in civil disobedience when on some (whose?) moral theory civil disobedience is justified—then you’re a villain.

            Far from my view. I am not a fundamentalist nor a tub thumper. Nor am I a hero, just a reluctant participant in a saga that has enormous consequences for others.

            I think in most areas of life there is no one moral absolute; there is a moral pluralism. It is that which prompts us to dissent from the moral position that the law must be obeyed because it is the law. What you seem to propose is not a moral pluralism but a moral relativism: a whatever you are having yourself perspective.

            BC is ‘villainous’ not because it refrains from engaging in civil disobedience but because it knowingly acted in a negligent way that could cause gratuitous harm. And the call for it to step up to the plate and do the decent thing is based on the concept of recompense rather than retribution.

            I don’t think that’s the real world

            As you ask of morality ‘whose’ real world? The real world where people will suffer because of BC’s negligence is one such world you might consider.

            Your view ignores the idea that some moral obligation flows from the law just because it is the law.

            Not so. It recognises that ‘some’ but not all moral obligation flows from that.

            At a minimum, I would say that a person considering whether to engage in civil disobedience, except in extraordinary cases, should at least acknowledge that he is choosing between two moral demands, no matter how strongly he feels about the justice of his cause or the injustice of the law. But you seem to reject this notion.

            What I reject is not the existence of two competing moral demands but the moral equivalence you draw between them.

            And this I think takes us to the crux of your point in your comment that:

            I think your view does not allow a person to weigh the cost to himself of civil disobedience

            This is not about morality shaping behaviour but self interest regardless of the cost to others. I’m alright Jack and to hell with the rest.

            Can a moral society be built on that precept?

            So I think it is eminently legitimate to call on others to engage in civil disobedience. They of course have a choice whether to do so or not. But let’s not pretend the choice to refrain is always made on moral grounds.

            Having said all that I, nevertheless subscribe to the Orwell school of thought that I want to be good but not too good and not all the time. There are moral precepts we agree with but human frailty prevents us living up to them.

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