Although it was overshadowed somewhat by the High Court’s injunction today, the First Circuit heard oral argument in Boston College’s appeal from a portion of Judge Young’s judgment in the Belfast Project case. All prior coverage is at my Belfast Project index page.

The three judges who heard the case were Judge Boudin, Judge Torruella, and Judge Thompson. In some ways, this was a bad draw for BC, as Judges Boudin and Torruella were on the panel that affirmed the judgment against Moloney & McIntyre. But on the other hand, Judge Torruella wrote a somewhat sympathetic concurring opinion in that case, and Judge Thompson has sided with Judge Torruella on some divisive cases in the past.

Both lawyers did fine jobs. BC’s lawyer, Jeffrey Swope, had one overriding goal—to persuade the judges that BC’s case was distinguishable from Moloney & McIntyre’s case. He noted that the first of the two sets of subpoenas in the case was directed to the Dolours Price and Brendan Hughes interviews by name, while the second set of subpoenas was directed to a particular subject matter. I’m not sure what this gets him, since if I recall correctly, Moloney & McIntyre were appealing from Judge Young’s judgment with respect to both sets of subpoenas. But anyway, Swope went on to argue that the second set of subpoenas involved a judgment call about what was or was not relevant to the subject matter identified in the subpoenas, and that Judge Young had failed to apply the heightened scrutiny that, he claimed, the First Circuit’s precedents required him to apply in a case with First Amendment implications.

Swope ran into some headwind, however. Judge Thompson pointed out (Swope didn’t disagree) that the standard of review was abuse of discretion. Thus it wasn’t enough to show that Judge Young got the relevance inquiry wrong: BC has to show that he got it so wrong that he abused his discretion. Second, the panel, particularly Judge Boudin, questioned whether the argument that there was a heightened standard of review in the first place was tenable in light of the court’s decision in Moloney & McIntyre’s case. If there is no heightened standard of review, then the ordinary concept of relevance for discovery purposes would apply, and that’s a very broad concept indeed.

The government’s lawyer, Randall Kramm, focused on the similarity between this case and Moloney & McIntyre’s. He noted that Judge Lynch had reasoned that the facts of the case were closer to Branzburg than to the First Circuit precedent Swope had cited.

The least satisfactory aspect of the case is the fact that both parties have submitted ex parte materials to the court (BC submitted the interviews, the government submitted confidential information about the UK authorities’ criminal investigation), and neither side had access to the other side’s ex parte fiings. Nor, of course, does the public. So the parties could not really address the merits of whether Judge Young made the right call on relevance. This clearly troubled the judges, though mostly from the practical point of view—they wondered how they were supposed to decide the case in such a posture. But if there is no heightened scrutiny, as the government asserts, then the difficult mostly vanishes, since it seems at least more likely that the interviews in question meet at least the lax standard of relevance under ordinary principles of discovery practice.

The last First Circuit hearing in the case showed the folly of trying to predict the outcome of the hearing based on the judges’ questions. We’ll just have to wait and see!