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By Ted Folkman of Rubin and Rudman LLP

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Belfast Project: Review of Will Havemann’s Student Note

Ed Moloney has trumpeted news of a new piece in the Stanford Law Review Online1 on the Belfast Project:

There is a brilliant article in the current issue of the Stanford Law Review, one of the most prestigious in America. Its past editors have included one Chief Justice of the Supreme Court, William Rehnquist and one Supreme Court Justice, Sandra Day O’Connor and a host of federal district judges, appeal judges and legal luminaries. An article like this, prominently featured in the December 5th edition, is not something to be ignored.

So what about the merits of the author’s, Stanford Law School student Will Havemann’s, argument? Havemann begins with a relatively standard account of the Supreme Court’s Branzburg decision. By “relatively standard account”, I mean the kind of account you could find in many law review articles and lower court decisions before the last few years. This account says, in short, that in Branzburg four justices held that there is no First Amendment reporter’s privilege to refuse to respond to a grand jury subpoena but that Justice Powell, who supplied the fifth vote, thought that there was some sort of privilege, based on a balancing of interests test, and that Justice Powell’s view correctly states the law. The problem with that view, as I wrote in August, is that in light of the DC Circuit’s decision in the Judith Miller case and the First Circuit’s decision in the Belfast Project case, it seems wrong on the merits. Now, maybe Justice Powell’s concurrence does control and the First and DC Circuits are wrong, but Havemann doesn’t defend that view, even though the premise of the second part of his article is precisely that Justice Powell’s view is right. Havemann acknowledges that the First Circuit may well have reached the right outcome, but he thinks the court made a mistake of law by not balancing interests a la Justice Powell. I think we cannot give much weight to this portion of Havemann’s argument insofar as he doesn’t justify his view about the meaning of Branzburg. Moreover, I think Havemann misses the force of Judge Lynch’s argument. As I read her decision in the Belfast Project case, she is saying that even if it is proper to weigh interests, Branzburg provides a stronger case for a privilege than the Belfast Project case does, and thus in light of Branzburg there is no privilege in the Belfast Project case a fortiori.

Havemann recognizes the policy implications of the First Circuit’s decision for future MLAT cases:

Mutual legal assistance treaties render this problem international in scope. If any country with whom the United States has an MLAT agreement may require the DOJ to subpoena confidential information on its behalf, endeavors like the Belfast Project could be annexed by foreign governments whose criminal justice interests differ substantially from our own.

But as he notes, the Attorney General has discretion to refuse to execute a request for assistance under an MLAT on public policy grounds. He does not defend the view that a court, rather than the executive branch, is the right institution to decide when it is appropriate to refuse to grant a request for judicial assistance from another government.

In short, Havemann’s piece is a well-written student article, but it should not change our underlying view of the case.

  1. A note for readers who may be looking for the article in a brick-and-mortar library: the Stanford Law Review Online is not the same as the printed Stanford Law Review, as Moloney says, though of course that has no bearing on the merits or demerits of the article.

Ted Folkman

2 responses to “Belfast Project: Review of Will Havemann’s Student Note”

  1. Will Havemann

    Dear Ted,

    I enjoyed reading your thoughtful post on my article about the Belfast Project case. Your criticism of my treatment of Justice Powell’s concurrence is well-taken. How to treat Justice Powell’s concurring opinion is an interesting and difficult question, and unfortunately the SLR Online format didn’t leave me with as much space as I would have liked to explore it.

    I think you’re right that Branzburg’s majority opinion categorically rejects a reporters’ privilege. This is certainly how the DC Circuit and the First Circuit have interpreted the opinion, and I tend to agree with this interpretation—although if you squint hard you can find some ambiguity in Justice White’s language. The fact that Justice Powell joined the majority opinion would usually end the inquiry. Typically, when a Justice writes a separate concurrence after joining a majority opinion, the Justice writes only to elaborate on a point not made by the majority, but doesn’t express any views that are inconsistent with the Court’s holding. Branzburg is interesting because Justice Powell’s concurrence—in which he recognizes a limited privilege to be adjudicated on a case-by-case basis—seems flatly inconsistent with the majority’s categorical rejection of a privilege.

    If Justice Powell hadn’t concurred in the majority opinion, then, as the fifth vote, his concurrence would be controlling. But since he did join the majority, he must have believed that his recognition of a limited privilege could somehow be reconciled with the majority’s view. Either way, it seems to me that Justice Powell’s view should at least inform how lower courts adjudicate these claims going forward. And that’s what I think the First Circuit got wrong.

    There are a number of ways that courts could interpret Branzburg in light of Justice Powell’s recognition of a limited privilege. One way is to apply case-by-case balancing. Because this is the method Justice Powell himself suggests, it’s the one my article addresses. But I also think that courts could apply something akin to strict scrutiny when the government subpoenas a reporter’s confidential source—placing the burden on the government to prove that the subpoena is necessary to advance a compelling interest. If the Supreme Court takes the Belfast Project case, I imagine the strict scrutiny alternative—a methodology common to First Amendment cases—would be much more appetizing to the Court than the case-by-case approach.

    But, regardless of the best analytical approach, I think that First Amendment principles make clear that government subpoenas of journalists’ confidential information must be subject to some meaningful judicial scrutiny. If the government were free to force journalists to turn over information obtained on the condition of confidentiality, subject to no scrutiny whatsoever, then a vital component of freedom of the press would be eviscerated.

    Regards,
    Will Havemann

    Reply
    1. Ted Folkman

      Will, thank you for your comment. I hope my comment didn’t seem overly polemical, though as you may have seen if you’ve poked around on the web, there are plenty of polemics to go around on the Belfast Project and the issues it has raised.

      You may well be right as a policy matter about what the law should be. It seems to me that if you are right, the answer really lies with Congress in light of Branzburg. But even if you are right as a policy matter about a reporter’s privilege—and I think you are—I am not sure the reasoning carries over to the Belfast Project. A reporter promises confidentiality in order to bring news to the public’s attention right away. Moloney and McIntyre do not intend to publish details of particular interviews until an unspecified time in the future. In the reporter’s case the identity of the source is secret but the substance of the news is known. Here, at least one of the sources’ identities is known but the substance of the interview is to be kept secret. But I could be wrong in my views about the policies at stake.

      Reply

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