Update on Boal v. United States: The Bergadhl Case
Posted on August 4, 2016
Readers, as promised, I am keeping my eye on the Boal v. United States case, which I wrote about last week. After I posted, Boal filed a brief that strengthened his case somewhat insofar as it asserts that he had made promises of confidentiality to Sgt. Bergdahl. But my view is unchanged.
My prior post gave my reasons for doubting that there is a reporter’s privilege in criminal cases at all. But if there is a privilege, isn’t the purpose to allow whistleblowers to come to reporters and tell their stories with adequate assurance that the reporters will not disclose their identities to the public or the government (think Deep Throat, or Scooter Libby)? That’s not what’s going on here. Here, everyone knows that Sgt. Bergdahl spoke to Boal. The question is whether a constitutional privilege attaches to anything Sgt. Bergadhl said that Boal chose not to publish, or that Sgt. Bergadhl told Boal on an “off the record” basis.
Boal’s brief asserts that Branzburg is the source of the First Amendment privilege he claims. In a footnote, he concedes that in Branzburg the Court actually rejected the claim of privilege against a grand jury subpoena. He points out that in Branzburg the court noted that grand juries are subject to judicial oversight and subpoenas are subject to motions to quash; but is that a good distinction? Boal acknowledges later in his brief that unreasonable or oppressive subpoenas in courts martial can be quashed. In any case, perhaps the Ninth Circuit will disagree, but it seems clear to me for the reasons given in prior posts that it’s just a mistake to read Branzburg to create a First Amendment privilege.
It looks as though the briefing will extend into mid-August, so I will check back later this month for updates.