Federal appeals court rejects academic researchers' reporter's privilege defense

The First Amendment-based reporter's privilege does not extend to a pair of academic researchers working on an oral history project for a Massachusetts university, the U.S. Court of Appeals in Boston (1st Cir.) ruled Friday.

As a result, Boston College must comply with two sets of subpoenas, which were issued as part of an investigation by United Kingdom officials into the 1972 abduction and death of Jean McConville, a mother of 10 and an alleged informer for the British authorities on the activities of republicans in Northern Ireland.

The college sponsored The Belfast Project, an oral history project that records the stories of members of the Provisional Irish Republican Army and other groups involved in the conflict in Northern Ireland beginning in 1969. According to the opinion, the subpoenas filed in May and August of last year sought "oral history recordings and associated documentation from interviews" with two former members of the Irish Republican Army and "any information related to the death or abduction of McConville contained in any of the other interview materials held by" the college, respectively.

Although the college turned over the materials involving one participant who had died and therefore had no confidentiality interest at stake, it moved to quash both sets of subpoenas regarding the living participant. The trial court denied the motions to quash, and after reviewing the materials in-camera, it ordered production.

Project director Ed Moloney and Anthony McIntyre, a former Irish Republican Army member and a researcher for the project, "unsuccessfully sought to intervene" in the college's cases, according to the opinion. They filed a complaint with the trial court, and when the court dismissed the complaint, Moloney and McIntyre appealed the decision.

Based on its interpretation of Branzburg v. Hayes, the First Circuit found Moloney and McIntyre had no constitutional basis to challenge the subpoenas. The 1972 landmark U.S. Supreme Court case held that reporters have no First Amendment right to refuse to answer all questions before grand juries if they actually witnessed criminal activity.

“If the reporters’ interests were insufficient in Branzburg, the academic researchers’ interests necessarily are insufficient,” the opinion stated.

A concurring judge said that Branzburg does not automatically preclude the researchers from its scope of protection. In this case, however, they could not meet the standard required to protect their confidential sources, Judge Juan R. Torruella said.

"In my view, the Appellants cannot carry the day, not because they lack a cognizable interest under the First Amendment, but because any such interest has been weighed and measured by the Supreme Court and found insufficient to overcome the government's paramount concerns in the present context," he said.

Eamonn Dornan, the appellants' attorney, said the decision is “certainly a blow to academic freedom.”

“The court took a restrictive view of what Branzburg v. Hayes really meant for free press and confidentiality,” he said.

Dornan said the decision will have a chilling effect for oral history. “If the participants weren’t promised confidentiality, it’s likely they wouldn’t have provided testimonies," he said.

Dornan said his clients will seek a re-hearing with the First Circuit.