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lyle-dennistonBy Lyle Denniston, reporter for scotusblog.com, an online journal of American law

A case of two academic researchers who sought to explore the role of “foot soldiers” in the Troubles in Northern Ireland has escalated in the US Supreme Court into a major test case on the confidentiality of information gathered by journalists and academics, around the globe.  It also poses a significant test of how a US court should react to a plea for cooperation by police authorities in the UK.

The Justices of the Supreme Court are just now beginning to confront the case of former Irish journalist Ed Moloney and former Provisional IRA member Anthony McIntyre, with several scenarios of an outcome still possible.   In the meantime, the case’s importance has gained with legal filings by journalists, social scientists, a global free expression advocacy group, and Irish-American organizations.  They have challenged the Justices to see the case in a context much larger than the legal fight over a research effort called the “Belfast Project.”  (The Project and the legal dispute over it in the US were described in this post by Laura Coogan in October of last year.)

Under a bilateral criminal cooperation treaty between the UK and the US, Northern Ireland police since early 2011 have been seeking access to the oral histories gathered from former IRA and Unionist members.   They gave their accounts to Moloney and McIntyre under promises – to protect their safety — that the tapes would remain confidential and stored at Boston University in Massachusetts.

Moloney and McIntyre were not allowed to take full part as US federal courts approved the police subpoenas and rejected challenges by Boston University.  A part of that litigation continues in lower federal courts, even as Moloney and McIntyre are pursuing their legal claims in the Supreme Court.

The Justices are scheduled to consider the appeal this month, unless they postpone it, as Moloney and McIntyre have suggested, until the remaining litigation is decided in lower courts.  The Justices have the option, though, of going ahead with action on the appeal and that action, of course, could be a refusal to hear the two researchers’ claims.

The appeal, though, appeared to have enough potential to it that Justice Stephen G. Breyer in October temporarily stopped enforcement of the police subpoenas, while the appeal proceeds.  With the case in that posture, lawyers for others interested in the case began filing friend-of-Court (amicus) briefs with the Supreme Court, giving the case a wider sweep.

A group called Article 19: Global Campaign for Free Expression, a London-based organization named for an article in the Universal Declaration of Human Rights, said in its brief that the Justices should consider the impact of this case on “the work of journalists, human rights defenders, researchers, and others who make use of confidential sources, particularly those who work in conflict and post-conflict societies where the free flow of information is especially vulnerable.”

Review of the Moloney-McIntyre case is necessary, the group argued, “to clarify the constitutional right to the protection of sources,” especially the sources of those working internationally.  To dismiss the First Amendment claims without a full exploration of them, Article 19’s brief said, would expose journalists and researchers “to violence and retaliation from abroad.”

One of the constitutional keys to this case is whether the Justices will be willing to clarify and perhaps strengthen the protection of the First Amendment’s free press clause, and reconsider a 1972 decision in the case of Branzburg v. Hayes.   That decision rejected a claim of confidentiality for news sources in the face of a criminal case subpoena.

Pressing for further protection is a group that represents the legal interests of working U.S. journalists, the Reporters Committee for Freedom of the Press.   The Committee’s brief told the Court that there has developed “a divergent body of lower court precedent” interpreting that 1972 decision, so the Supreme Court should step in now to resolve the controversy.   The lower courts in the Moloney/McIntyre case gave “short shrift” to journalists’ interests, that brief contended.

A group of fourteen US scholars who specialize in social research suggested in their brief that “the case goes well beyond the specific goals of the Belfast Project….The threat of unlimited subpoena power undermines the ability of any researcher to promise confidentiality and thus to obtain honest and reliable answers to the most pressing issues of our time.”   In addition, this scholars’ brief told the Court that the case presents an opportunity for the Justices to enlarge the concept of academic freedom, noting that the Court has commented that the concept has First Amendment protection, but has never defined it clearly.

Three Irish-American organizations – the Ancient Order of Hibernians, the Irish American Unity Conference, and the Brehon Law Society – said in their brief that there remains uncertainty about the success of the Good Friday Agreement that ended the Troubles, because its implementation remains “imperiled by the continuing atmosphere of mistrust.”  Enforcement of the Northern Ireland police subpoenas for the Belfast Project materials, the brief asserted, may have “potentially undesirable consequences to the continuing process of reconciliation in Northern Ireland.”

The Supreme Court Justices take seriously, and often consult closely, the amicus briefs filed before them, and these filings thus could enhance the prospect of review of the Moloney/McIntyre appeal.