The First Amendment and International Agreements

An interesting opinion in In re Request from the United Kingdom Pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Dolours Price (D. Mass. Dec. 16), involving a subpoena by the UK government pursuant to a UK-US treaty seeking evidence from a Boston College oral history project. Here are some excerpts, though they only give a flavor of what’s going on in this rather long and complex opinion:

The Trustees of Boston College move to quash or modify subpoenae requesting confidential interviews and records from the oral history project known as the “Belfast Project.” The subpoenae were issued by a commissioner pursuant to 18 U.S.C. § 3512, the United Kingdom Mutual Legal Assistance Treaty (“UK–MLAT”), and a sealed Order of this Court. The government asserts that the terms of the UK–MLAT requires the Court to grant its order and deny any motion to quash absent a constitutional violation or a federally recognized testimonial privilege. Boston College asks the Court to review the subpoenae under the standard set forth in Federal Rule of Criminal Procedure 17(c)(2), where “the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.” This Court is asked to determine what sort of discretion an Article III court has to review or quash a subpoena brought under the authority of the UK–MLAT….

In 2001, Boston College sponsored the Belfast Project, an oral history project with the goal of documenting in taped interviews the recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the “Troubles” in Northern Ireland from 1969 forward. The research also sought to provide insight into the minds of people who become personally engaged in violent conflict. As such, its progenitors saw it as a vital project to understanding the conflict in Northern Ireland and other conflicts around the world. The Belfast Project was housed at the Burns Library of Rare Books and Special Collections at Boston College. Boston College sponsored the project due to its ongoing academic interest in Irish Studies and its prior role in the peace process in Northern Ireland….

Boston College argues that the First Circuit recognizes protections for confidential academic research material and that these protections apply to the targets of the commissioner’s subpoenae….

[The] legal commitments that the United States made in approving the Treaty coincide with the general legal rule preventing journalistic or academic confidentiality from impeding criminal investigations. See Branzburg v. Hayes, 408 U.S. at 692 (rejecting “the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it”); United States v. Smith, 135 F.3d 963, 971 (5th Cir.1998) (“Branzburg will protect the press if the government attempts to harass it. Short of such harassment, the media must bear the same burden of producing evidence of criminal wrongdoing as any other citizen.”). “ ‘[T]he public … has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege.” Here, there is no recognized privilege.

As the subpoenae state, the information is sought in reference to alleged violations of the laws of the United Kingdom, namely murder, conspiracy to murder, incitement to murder, aggravated burglary, false imprisonment, kidnapping, and causing grievous bodily harm with intent to do grievous bodily harm…. These are serious allegations and they weigh strongly in favor of disclosing the confidential information….

In this case, this Court must weigh significant interests on each side. The United States government’s obligations under the UK–MLAT as well as the public’s interest in legitimate criminal proceedings are unquestioned. The Court also credits Boston College and the Burns Library’s attempts to ensure the long term confidentiality of the Belfast Project, as well as the potential chilling effects of a summary denial of the motion to quash on academic research. With such significant interests at stake, the Court will undertake an in camera review of the interviews and materials responsive to the commissioner’s subpoenae.

This Court DENIES the motions of the Trustees of Boston College to quash the commissioner’s subpoenae, and GRANTS Boston College’s request for in camera review of materials responsive to the subpoenae to the Court. This Court ORDERS Boston College to produce copies of all materials responsive to the commissioner’s subpoenae to this Court for in camera review by noon on December 21, 2011, thus allowing time for Boston College to request a stay from the Court of Appeals. Absent a stay, this Court promptly will review the materials in camera and enter such further orders as justice may require.

This strikes me as correct as a matter of First Amendment law, and indeed an application of the standard principles that would generally apply to domestic criminal investigations; I don’t see the court restricting First Amendment rights in the name of international agreements here. Still, it struck me as an interesting and noteworthy example of how First Amendment questions sometimes arise in treaty cases.