Much ink has been spilled, but little insight exhibited, in the ongoing imbroglio stemming from Boston College’s, the news media’s and the federal courts’ failure to accord robust First Amendment protection to oral history scholars who have recorded their interviews of participants in the Irish "Troubles" and who thereby seek to preserve for posterity nothing less than the lessons of war and peace. Now, a federal appeals court in Boston has issued an opinion that holds that the interview recordings and transcripts compiled by scholars and housed in BC’s library under a seal of confidentiality for the lifetime of each interviewee must be turned over to the Department of Justice for transmission to the Northern Irish investigative authorities. This is a profoundly reckless and short-sighted ruling, the consequences of which are likely to roil a broad range of scholarly, as well as journalistic activities.
To recap: Beginning in early 2001, journalist-scholar Edward Moloney and fellow researcher Anthony McIntyre, a former IRA member with a doctorate in the history of Irish Republicanism, entered into an agreement with Boston College stipulating that BC would employ them in the creation of the Belfast Oral History Project, an oral history of the bloody battles between the Provisional Irish Republican Army and the Northern Ireland Loyalist paramilitary forces that produced decades of some of the bloodiest sectarian violence in recent history. With the subsiding of that violence and the achievement of a historic peace (a work still in progress, however, and one with remaining open wounds), Moloney and McIntyre saw an important opportunity for the preservation of the memory of that conflict through BC’s promise to sponsor the collection and housing of the raw materials of the oral history research the scholars would conduct.
In a formal written contract, BC and the scholars agreed that the recordings generated by the scholars’ interviews of participants would be heldconfidentially in BC’s John J. Burns Library. Each interview would beavailable for inspection only upon the death of the interviewee. This agreement required the scholars to give each interviewee his own separate contract "guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period…" (emphasis added). Part of the problem that emerged later was that the subsidiary contract that BC’s lawyers drew up for the scholars to enter into with the individual interviewees did not make any such exception based on what US law allow. The scholars instead had given the interviewees, perhaps naively in light of BC’s drafting oversight and self-imposed institutional limitations, unequivocal assurances of confidentiality.
Those assurances became the center of controversy in May and August of 2011, when the Department of Justice served BC with court-issued subpoenas for materials generated by the Belfast Project regarding the 1972 murder of suspected informant Jean McConville, which had been formally requested by Northern Irish law enforcement authorities under the United States-United Kingdom Mutual Legal Assistance Treaty. BC responded to the subpoenas by turning over transcripts of the interviews to U.S. District Judge William Young for in camera review — in other words, a private review in his chambers, in which Judge Young would decide which documents were responsive to the subpoena and whether any of them might be protected by a First Amendment "scholar’s privilege" akin to that more familiarly accorded to, or at least claimed by, news reporters.
This case raises profound questions of whether American constitutional law will honor, to at least some degree, the right of scholars, like that of newsmen, to conduct sensitive research outside of the reach of governmental investigative and prosecutorial authorities. Yet the academy and the news media generally have been inexplicably remiss in coming to the support of the Boston College scholars, and even BC has been lukewarm in supporting them. The American Civil Liberties Union of Massachusetts (ACLUM) filed a friend-of-the-court brief supporting the scholars, pointing out to the U.S. Court of Appeals in Boston the importance of the First Amendment privilege at issue not only for scholars, but for newspaper reporters as well. Yet "Injustice Department" has been almost alone in the general readership news media inpointing out the damage that would be done to oral history, an important genre of scholarly research, if the assurances of confidentiality extended by the scholars to their interview subjects are not honored by the courts.
The BC scholars, if they had had the benefit of hindsight, likely would have trusted no one but themselves to house and protect their tapes and transcripts, but there was simply no way they could have anticipated how the litigation challenging the subpoenas would have unfolded. How could they have known that BC would not even bother to challenge the first subpoena seeking materials "in the matter of Dolours Price," a confessed former IRA member suspected of involvement in the McConville murder? Or that when BC finally challenged the second subpoena that sought an even longer list of materials, its lawyers would commence their challenge by turning over the materials to the federal district court judge so that he could examine them in camera in order to determine which ones fell within the request of the Northern Irish authorities?
BC’s turn-over of the materials might seem to have been merely an expedient courtesy extended by BC’s lawyers to the judge — after all, if he examined the transcript in the comfort and convenience of his chambers and found none of the materials responsive to the subpoenas, the case would have ended quickly in BC’s favor. In reality, immediately turning over the transcripts doomed the scholars from the get-go. When the judge found that at least some of the materials were covered by the subpoena (as he was predictably going to do, given the terms of the subpoenas and the subject matter of the interviews), and when his turn-over order was affirmed on appeal — as finally happened on July 6 — the scholars had no opportunity to take more radical action to protect the confidentiality of their interviewees. They could not, in other words, make a conscientious decision to commit an act of civil disobedience by refusing to obey the court order to turn over the tapes. The court already had possession of the contested materials, making a sham of the scholars’ absolute assurances to their interview subjects that they would keep the tapes absolutely confidential until the death of each interviewee.
Nobody realistically expected that Boston College, as an institution, would engage in civil disobedience in order to avoid turning over the scholarly materials to the court if, after litigation through an appeal, it was ultimately ordered to do so. Institutions such as colleges and universities, unlike individuals, have little leeway in disobeying a court order, whether on grounds of conscience or for any other reason. A judge, after all, has the power to impose rapidly escalating fines that could bankrupt even the wealthiest organization; the trustees of most institutions would in almost every situation conclude that fiduciary duty precludes letting the organization collapse merely because some principle is at stake. This is why organizations rarely should be trusted with the possession of absolutely confidential materials that might be subject to subpoena by governmental authorities. (The individual, it is acomfort to some of us to know, can still accomplish things that even the largest organizations cannot or will not risk.)
Indeed, as Chris Bray, a UCLA doctoral candidate in history who has been closely watching the Boston proceedings, told The Chronicle of Higher Education, "Academic freedom exists to the extent that you are willing to pay a price for it," adding a challenge that BC obviously chose not to take up: "Journalists are willing to go to jail to protect sources. What will Boston College do?" The answer to Bray’s question is that BC had effectively limited its options from the day that it turned over the materials to Judge Young. From that point on, it did not have the option of engaging in an act of civil disobedience even if it chose to risk the institution’s endowment in doing so. Worse yet, BC’s action deprived the scholars of the opportunity to take possession of the Belfast Project materials and refuse, as a matter of principle, to relinquish them to federal authorities.
And therein lies the most profound lesson of this case: If documents are truly sensitive — if, for example, premature disclosure of interview tapes could well result in violence being wreaked against both interviewee and interviewer — it is better that an academic institution not agree to exert control over them. That should be left to individuals willing to risk the consequences of adhering to conscience.
Journalists and scholars alike have chosen imprisonment rather than a betrayal of those who spoke to them under a promise of confidentiality. Perhaps the most prominent example in recent years is the case of Judith Miller, then a reporter for the New York Times. During the grand jury investigation into the leaking of CIA operative Valerie Plame’s covert identity, Miller was alleged to have knowledge of the source of the leak of Plame’s undercover status. Instead of revealing the name of her source or turning over her notes to prosecutors, she refused to cooperate with the investigation and was held in contempt of court, ultimately spending three months behind bars until her source, I. Lewis "Scooter" Libby, gave Miller permission to disclose his identity. At the time, Times executive editor Bill Keller described Miller’s actions as a "brave and principled choice."
The same courage exhibited by newspaper reporters who have been denied protection under the legally controversial "reporter’s privilege" has been demonstrated by some academics relying on the similarly amorphous "scholar’s privilege." Rik Scarce, at the time a doctoral student at Washington State University, chose to spend five months in jail for federal contempt-of-court rather than betray "earth liberation" activists who had agreed to be interviewed by him pursuant to a promise of confidentiality. Scarce, who is now a sociology professor at Skidmore College, told the Chronicle of Higher Education this past February that when a researcher promises confidentiality to those who agree to answer a scholar’s questions, "You stand by those statements."
"What you don’t do," continued Professor Scarce, is "what Boston College appears to be doing." Professor Scarce pointed out the obvious: Unless the confidentiality of research interviewees is honored, their willingness to participate will dry up, whether they are involved in the radical environmental movement or a violent sectarian struggle such as that which convulsed Ireland. (And, in a turn of events instructive to the BC case: when the coercive jailing of Scarce did not loosen his mouth, the judge gave up and released him.)
Of course, structural differences between the publisher-journalist relationship and the university-scholar relationship may explain — though not justify — BC’s behavior. The reason Bill Keller could tout his praise of Judith Miller’s integrity and fortitude in front of a bank of microphones and not from his own jail cell is because the Times followed its shrewd practice of requiring its reporters to maintain possession of their own notes. Had Miller’s notes been held by theTimes itself, prosecutors could have jailed the editors and publishers for contempt of court, or, worse, they could have used the aforementioned "tool" of sharply escalating fines to confront the corporate entity with a choice of either bankruptcy or capitulation. This distinction between an individual’s ability to withstand a court’s coercive contempt powers and the pliability of an institution such as a newspaper or a university that can be bankrupted and effectively put out of existence points to a fundamental flaw in the arrangement between BC and the scholars: the scholars promised their sources absolute confidentiality (after all, the physical safety of both interviewer and interviewee was at stake) and were willing to entertain the option of civil disobedience in order to honor the agreement, whereas BC promised its scholars confidentiality within the confines of the law and could therefore refuse to draw lines in the sand in the event the lawmen came calling. And indeed, when the call did come, it became clear that the Belfast Project’s materials should not have been entrusted to those who had made the weaker pledge.
The all-too-expected result of BC’s immediate and unquestioning turnover of the materials is that Judge Young and the three-judge panel of the Court of Appeals affirming his decision rather blithely failed in their judicial duty to weigh properly the needs and interests of the UK investigators versus those of the scholars. It was much easier for the courts to simply turn over the materials than to make a searching inquiry into, and analysis of, the balancing of legal, scholarly, and law enforcement interests involved. Without questioning either Moloney or McIntyre, Judge Young naively took at face value the word of the Northern Irish prosecutors and of the Department of Justice that the materials were essential to a murder investigation being conducted in good faith and that the scholars’ work product was essential to that investigation. The courts did not question in detail the Northern Irish authorities, nor their American proxies at the Department of Justice, as to whether a good faith basis existed for the criminal investigators’ extraordinary step of seeking to force scholars to turn over work-product that had been gathered on the basis of a scholar’ssacred oath of confidentiality.
Thus, there was no balancing of the rights of the BC scholars, nor of their interview subjects, versus those of the police. There was no consideration given to the problems created by forcing a major academic institution to abandon the interests of its scholars. The federal courts in Boston simply plowed ahead, rashly ordering the turnover to the Northern Irish authorities of the work-product brought into existence only because of a pledge, by the scholars, of absolute confidentiality — a pledge rendered moot the moment BC’s lawyers turned the transcripts over to the judge for inspection. Now, with lives at stake and the courts blind to a proper balancing of interests, it is clear that that first error could not have been graver.