Legal History

P.T. Barnum, Justice Harlan, and 
Connecticut’s Role in the Development of the Right to Privacy

By James I. Glasser and 
Benjamin M. Daniels

Next year marks the 50th anniversary of Griswold v. Connecticut, 381 U.S. 479 (1965), the landmark case that recognized a constitutional right to privacy.  Although the case is well known, the history leading to this important decision is not.  The challenged statute in Griswold was championed by none other than Phineas T. Barnum, the founder of Barnum & Bailey circus.  Barnum supported the legislation to curb both obscenity and the burgeoning use of contraceptives.  Once passed, the law was on the books but was largely ignored for nearly 75 years.  It was not until birth control clinics began popping up during World War II that Connecticut began to enforce the law.  In 1939, two doctors and a nurse working at a clinic were arrested.  These arrests were the opening salvo of court battles that would span the next 25 years.  Ultimately, Justice John Marshall Harlan II (another Connecticut resident) would play a central role in overturning the Connecticut law championed by Barnum and in establishing the enduring right of privacy.  Griswold profoundly changed civil liberties, laying the groundwork for recognition of the right to terminate a pregnancy (Roe v. Wade), the right to private, consensual same-sex relations (Lawrence v. Texas), and the right to choose family living arrangements (Moore v. East Cleveland).

P.T. Barnum, Champion of 
Victorian-Era Values

Connecticut’s anti-contraception statute was part of a national, Victorian-era movement to criminalize birth control.  Born from complex issues of race, gender, and class that arose during post-Civil War urbanization, the anti-contraception movement was led by New Canaan, Connecticut, native Anthony Comstock, “a prominent anti-vice crusader who believed that anything remotely touching upon sex was obscene.”  Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 69 n.19 (1983).  Comstock founded the New York Society for the Suppression of Vice, a vigilante vice squad that seized obscene materials and arrested its distributors.

Comstock also lobbied for federal legislation to prohibit the circulation of obscene literature.  In 1873, Congress passed the “Comstock Act,” which made it illegal to sell or distribute “any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion” through the U.S. Mail.  See 42 Cong. Ch. 258, March 3, 1873, 17 Stat. 598.  Comstock secured a position as a special Postal Inspector to enforce the Comstock Act, and used his position to impound or destroy items he considered lewd or obscene ranging from fine art to anatomy textbooks.

Soon after Congress passed the Comstock Act, states began enacting “mini-Comstock Acts.”  In Connecticut, P.T. Barnum (by then a state senator from Bridgeport) took up the anti-obscenity cause.  Initially, the Connecticut anti-contraception bill prohibited only the distribution of literature addressed to contraception and abortion.  However, Barnum changed the bill’s focus when it reached the Connecticut legislature’s Joint Committee on Temperance.  As chair of that committee, Barnum prepared a substitute bill that prohibited the “use” of “any drug, medicine, article, or instrument” for the “purpose of preventing conception.”  Barnum also made it a crime to act as an “accessory” to the use of contraception, a clause aimed at doctors who prescribed contraceptives.  The bill passed the legislature and became the most restrictive law in the United Sates, subjecting married couples (and their doctors) to arrest and possible imprisonment for using birth control.

Police Raids, Justice Harlan, and the Road to Griswold

Barnum’s Act, while on the books, was largely ignored until 1939, when attention was drawn to one group’s deliberate disregard of the law.  The Connecticut Birth Control League had spent 15 years lobbying the Connecticut legislature to repeal Barnum’s Act.  The League had found that contraceptives were available only to women who could afford private doctors.  Notwithstanding (or perhaps because of) this reality, the legislature was unmoved by repeal efforts.  In response, the League opened birth control clinics in Hartford, Greenwich, New Haven, and Stamford.  The police and the public turned a blind eye to these public clinics.

However, this indifference changed to outrage when a League member publicly boasted about the opening of a new birth control clinic in Waterbury.  A local newspaper reported the clinic’s opening and the article provoked a swift and vocal condemnation by Waterbury’s Catholic leaders. Police responded by raiding the Waterbury clinic and charging two doctors and a nurse with violations of the Barnum Act.  The defendants brought an interlocutory appeal to challenge the constitutionality of the statute.  The Connecticut Supreme Court upheld the statute in State v. Nelson, 126 Conn. 412 (1940).  The State subsequently dismissed the charges against the doctors and the nurse, but the arrests sent a warning shot across the bow of clinics in Connecticut and many closed their doors.

After further efforts to repeal the law stalled, birth control advocates turned their attention to the courts.  In 1941, a Yale doctor asked a court to declare that the Barnum Act allowed contraception if a pregnancy would be life-threatening and the statute violated his patients’ constitutional right to life.  Frederick H. Wiggin (of Wiggin and Dana) argued the case on behalf of the doctor, raising constitutional arguments.  Among other things, Wiggin compared the statute to various abortion statutes on the books in other states that provided an exception for situations where life was threatened.  The Connecticut Supreme Court rejected these arguments and found the statute contained no exceptions.  Tileston v. Ullman, 129 Conn. 84 (1942).  The court noted that “there is another method [to protect the patients], positive and certain in result …. absolute abstention.”  Id. at 92.  The U.S. Supreme Court dismissed the appeal from this decision for lack of standing.

The next challenge to Barnum’s Act came in the fall of 1958.  Three patients and their doctor again asked Connecticut courts to declare that the Connecticut statute violated their constitutional rights to life and liberty.  All three patients suffered medical conditions that made pregnancy dangerous to their health.  The Connecticut courts roundly rejected these claims, citing Tileston.

The U.S. Supreme Court dismissed the claims as nonjusticiable.  In a decision authored by Justice Felix Frankfurter, Poe v. Ullman, the Court held that the controversy was not ripe because Connecticut had not imprisoned or fined anybody under the statute.  The Supreme Court noted that contraceptives were widely available in Connecticut and openly sold in pharmacies statewide.  The lack of enforcement effectively nullified the statute, meaning that there was no true case or controversy.

Justice John Marshall Harlan II dissented.  An unlikely champion of the pro-contraceptive movement, Harlan was a “quiet and sober” man who was a member of the conservative wing of the Court.  Often concurring with Justice Frankfurter, Harlan believed that “the Constitution is not a panacea for every blot upon the public welfare” and that the Supreme Court should not be “a general haven for reform movements.”  See Reynolds v. Sims, 377 U.S. 533, 589 (1964) (Harlan, J., dissenting).  He also was a Connecticut Yankee with a home in Weston, Connecticut.  The Justice used his 7,000-foot estate (known locally as “Little Mountains”) to fly-fish, entertain law clerks, and decompress.

In his dissent from Poe, Harlan asserted that the majority’s opinion “does violence to established concepts of ‘justiciability,’ and unjustifiably leaves these appellants under the threat of unconstitutional prosecution.”  Poe v. Ullman, 367 U.S. 497, 522 (1961) (Harlan, J., dissenting).  Reaching the merits, he described the Connecticut statute as “an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s personal life.”  Id. at 539.  The statute was unconstitutional, Harlan argued, because it violated the right to “liberty” guaranteed by the Fourteenth Amendment.  This “liberty … cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.”  Instead, Harlan believed “liberty” was “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”

Estelle Griswold and the Right to Privacy

Poe presented a quandary for Planned Parenthood, which had taken up the fight against Barnum’s Act.  The organization had operated in Connecticut for years, but had not yet violated the statute due to a combination of fear of prosecution and the prospect of legislative reform.  Planned Parenthood now had to choose between violating the law by opening a clinic and continuing a legislative reform effort that had failed for 50 years.

Harlan’s dissent signaled that at least some members of the Court were willing to strike down Barnum’s Act.  One day after the Court issued Poe, Planned Parenthood disseminated a press release that “welcome[d] the recognition of the Court that the [Barnum] law has become a nullity” and promised to act “as rapidly as possible” to open a public birth control clinic.  See David Garrow, Liberty & Sexuality, 196 (1998).  The director of Planned Parenthood of Connecticut, Estelle Griswold, noted that she would “welcome prosecution by the state” so that courts would have the opportunity to overturn the “absurd and antiquated” Barnum Act.  Id. Griswold was a Connecticut native who had been the director of the Connecticut chapter of Planned Parenthood since 1953.  A product of Hartford public schools, Griswold had pursued a career as a singer before finally settling in New Haven.  As director of Planned Parenthood, Griswold had helped with prior legislative efforts and with the Poe case.  Now, she would take center stage.

Griswold announced that Planned Parenthood would open a birth control clinic in New Haven and scheduled a press conference at the clinic on November 2, 1961.  Within one week of the clinic’s opening, police arrested Griswold and Lee Buxton, the former chair of the obstetrics and gynecology department at Yale’s medical school and the co-director of the clinic.  Griswold reportedly was “overjoyed” to see the police and offered the officers copies of the clinic’s literature and pamphlets.  See Garrow, at 198.  The State formally charged Griswold and Buxton with violating the Barnum Act.  Griswold and Buxton were convicted after a bench trial.  Connecticut courts rejected all challenges to the convictions, citing Nelson, Tileston, and Poe.  Griswold’s arrest and conviction finally put the Barnum Act squarely before the U.S. Supreme Court.  In what may be the shortest landmark decision in Supreme Court history, the Court recognized the right to privacy – presaged by Harlan’s dissent in Poe – in the “penumbras” of the Bill of Rights.  Writing for the Court, Justice Douglas noted that the Court previously had recognized constitutional rights that were not express in the Constitution.  For example, the Constitution did not expressly recognize a right to control the education of one’s children or a right of the press to distribute publications.  Yet, the Court found these rights to be an inherent part of the Constitutional fabric that give the guarantees life and substance.  The right to privacy, Douglas reasoned, must exist to support the First Amendment (freedom of association), the Third Amendment (prohibition of quartering troops), the Fourth Amendment (unreasonable searches and seizures), the Fifth Amendment (right against self-incrimination), and the Ninth Amendment (rights left to the people).

Harlan concurred in Griswold, but took the more expansive view of the right to liberty that he had articulated in Poe.  Harlan argued that the “penumbra” approach restricted the rights inherent in the Due Process Clause of the Fourteenth Amendment.  Harlan worried that the Court’s reliance on penumbras could lead to a restrictive view of liberty that narrowed individual rights to those expressly or implicitly found in the Bill of Rights.  Instead, Harlan believed that the Due Process Clause protected “basic values implicit in the concept of ordered liberty.”

Although his view did not carry the day, Harlan’s view of substantive due process has enduring relevance.  The Court has described Justice Harlan’s Poe dissent as “[t]he second major opinion leading to the modern doctrine” of substantive due process.  See Washington v. Glucksberg, 521 U.S. 702, 762 (Souter, J., concurring).  In fact, the Court adopted Harlan’s reasoning in Planned Parenthood v. Casey, 595 U.S. 833, 850 (1992), which established the “undue burden” standard of evaluating abortion restrictions.  Critics charge that Harlan’s approach gives judges carte blanche to enforce the unwritten purposes of the Due Process Clause, thereby removing important social issues from the democratic process.  Harlan responded that judges could be trusted to exercise restraint in enforcing the idea of “liberty” in the Due Process Clause.  After all, it was similar to the general language of other “specific rights” such as “freedom of speech,” which judges had interpreted and applied for years.  Harlan believed that judges would be equally capable of interpreting “liberty.”

Although there were two other concurrences, all agreed that the “right to privacy” was “fundamental” and “substantive.”  Justice Arthur Goldberg concurred, arguing that the Ninth Amendment, which states that the Bill of Rights does not exhaust all the rights retained by the people, contained a “fundamental right to marital privacy” that was not found in any other specific constitutional amendment.  Justice Byron White argued for a combination of Harlan’s and Goldberg’s positions, finding the right in both the Ninth and the Fourteenth Amendment.  Justices Hugo Black and Potter Stewart dissented.

Legacy

After Griswold, the Supreme Court extended these same privacy protections to unmarried women in 1972.  It also opened the door for Roe v. Wade the following year.  The Court once again relied on Griswold when it applied the right to privacy in Lawrence v. Texas, the 2003 decision that protected the right of consensual same-sex relations in the privacy of the home.  Events leading to these landmark decisions all were put in motion by a puritanical circus impresario who is famously remembered for saying, “the public is wiser than many imagine.”

Legal History

Books in Wartime: 
The Fight Against 
Censorship During World War II

By Molly Guptill Manning

In 1933, in towns across Germany, heaps of books were set aflame.  Most of these books were written by Jewish authors or contained liberal ideas antagonistic to the Nazi platform.  These book burnings marked the beginning of Adolf Hitler’s “war of words.”
As Germany’s army and the destruction of books spread across Europe, American librarians began a crusade to protect books.  While their colleagues in Europe were forced to purge their shelves to comply with Hitler’s bans, American librarians began the fight to protect the freedom to read.

Those who would face Germany’s army would need the most armor.  American librarians began a campaign to provide American servicemen with millions of books – of all titles and viewpoints – to protest Germany’s actions and provide portable entertainment for the troops’ leisure hours.  Forming the Victory Book Campaign, virtually every librarian in the United States worked together to collect millions of donated books for American soldiers.  In the process, they stressed the importance of books in wartime, and how exercising the freedom to read was the best way for Americans to defend themselves against the propaganda-laden war of words.

By 1943, American servicemen were fighting on fronts around the world, and while they treasured books for their ability to remind them of home and provide a much-needed distraction during their free time, hardcover books were impractical on the front lines.  American publishers learned that soldiers were reluctantly tossing hardcover books because they were too heavy and large to carry in their packs.  Believing books were an important component in fighting the war, American publishers formed an organization called the Council on Books in Wartime to publish books especially suited for America’s soldiers and sailors.

Armed Services Editions

In short order, the Armed Services Editions were born: miniature, lightweight paperbacks that were specially designed to fit the hip or breast pocket of standard issue military uniforms.  There was a title for everyone, ranging from The Republic of Plato to The Sad Sack (comics), and nearly everything between.  Each month, bundles of books were delivered to units around the world.  As soon as they were loosed from their packaging, titles were eagerly snatched up.  These books were the troops’ ration on pleasure.  The Armed Services Editions were pegged the most successful morale program of the entire war.

Yet, Congress stepped in and censorship began.  And it took the unsuspecting form of an absentee voting bill for soldiers.  After Congress passed an almost useless bill on absentee voting in 1942 (under which fewer than one percent of soldiers were able to cast a ballot), Congress was under tremendous pressure to pass meaningful absentee voter legislation for the 1944 presidential election.

Polls revealed that the majority of servicemen would vote for Roosevelt.  For example, a 1944 poll taken in the South Pacific revealed the 69 percent of American troops favored a fourth term.  As this information became common knowledge in Congress, the soldier voting bill became a partisan issue.  Democrats were incentivized to create a ballot that would make it as easy as possible for those in the services to cast a ballot (for Roosevelt), while Republicans were tempted to make voting difficult for those serving overseas.  After all, Roosevelt had won his third term by a margin of only five million votes.  With nearly 12 million Americans serving overseas in 1944, the soldier vote could sway the election.

Republicans became concerned that the Democrat-led government would distribute political propaganda to the armed services to assure that all would vote for Roosevelt.  Ohio Senator Robert Taft, a Republican who despised Roosevelt, championed an amendment to the 1944 soldier voting bill, Title V, that prohibited the government from delivering any magazines, newspapers, films, literature, or “other material” that contained “political argument or political propaganda of any kind designed or calculated to affect the result of any [federal] election.”  Punishment for violation of the law included a fine, one year of imprisonment, or both.  With hardly any debate, this amendment was slipped into the bill and became law.

Immediately, the Armed Services Editions felt the pinch.  Yankee from Olympus, a best-selling biography of Chief Justice Holmes was banned, apparently because one page of the book described a casual conversation between the Chief Justice and President Roosevelt.  Charles Beard’s The Republic could not be printed, most likely because it provided a political history of the United States.  Many other titles were banned, as were Army and Navy textbooks (because they displayed a photo of Roosevelt captioned “Commander in Chief”), newspapers that covered politics, and films such as Wilson (a movie about the former president).

American publishers refused to be restricted in their book selections and decided to fight Congress.  After considering hiring a top constitutional lawyer to wage a legal battle, publishers instead commenced a trial in the court of public opinion, believing this would achieve faster results.  The publicity departments of nearly every American publisher made sure that every newspaper and magazine in the United States ran stories on Congress’s censorship of soldiers’ reading.  It was remarkably successful.  “If it is to be left to the Adjutant General to decide what the Army is to be permitted to read then we might as well join the Nazis and stop fighting them,” Virginia’s Lynchburg Daily Advance declared.  Perhaps those in the services “would rather skip voting this year than to have their reading material censored,” the San Antonio News said.

The public fiercely opposed the law; letters and telegrams to legislators expressed displeasure with the law in the most colorful of terms.  Publishers demanded a meeting with Senator Taft to discuss amendment or repeal, and the embattled Senator agreed.  After the meeting, Taft injudiciously remarked that he did not think those in the services should be permitted to vote, as they “were out of touch with the country, lacking knowledge of issues and candidates,” and likely to vote for Roosevelt.  With these words, Taft became a congressional pariah.  His colleagues distanced themselves and promised immediate action to change the law.  By August 1944, the political propaganda provision of the Soldier Voting Act was repealed.

It was one of the finest hours in the history of American publishing.  In the words of Archibald Ogden, the executive director of the Council on Books in Wartime, “it is a refreshing example of democracy in action to bring a complete turn-about in both the Senate and the House within the space of less than two months.”
Editors’ Note:  Molly Guptill Manning is the author of the newly released book, When Books Went to War, which tells the full story of how books served a pivotal role in fighting World War II.

Legal History

The Belfast Project and the Dangers of the 
Subpoena Power

By James L. Bernard and 
Nathan H. Stopper

In 2001, an ambitious project by Boston College (“BC”) to document the oral history of a brutal conflict began.  Under the auspices of BC, a librarian, a journalist, and a former Irish Republican Army (“IRA”) paramilitant began interviewing individuals involved in the decades-long conflict in Northern Ireland.  In what became known as the Belfast Project (the “Project”), they conducted candid interviews under the cloak of anonymity with 40 former members of the IRA and its rival Protestant paramilitary groups, along with one former law enforcement officer.  By all appearances, this was a well-intentioned and noble project to explore in confidence a dark period in history, and to try to discover what lessons could be learned when all involved were able to speak freely and openly about what happened.  Things did not turn out as planned.  Once authorities in the United Kingdom learned of the Project, they tried to obtain the information that had been shared in confidence.  This article explores what happened in the U.S. courts regarding those efforts, and lessons to be learned from the ensuing legal battle.

The Interviews

The interviews were nominally “donations” made by the subjects to BC, and each interviewee signed an “Agreement for Donation” that restricted access to the tapes and transcripts of their interviews until after their deaths, absent the subject’s written consent.1  An additional agreement between the Project’s director, Ed Moloney, and BC provided that “[e]ach interviewee is to be given a contract guaranteeing to the extent American law allows” strict safeguards to prevent the unauthorized disclosure of an interview.2

Notwithstanding these confidentiality agreements, in 2011 BC was served with two sets of subpoenas (the “Belfast Subpoenas”) by a commissioner appointed pursuant to 18 U.S.C. § 35123 and a mutual legal assistance treaty between the United States and the United Kingdom (the “US-UK MLAT”).4  The first subpoena sought materials from the interviews of former IRA members Dolours Price and Brendan Hughes, while the second requested all information obtained by the Project regarding the abduction and murder of Jean McConville, a mother of 10 “disappeared” by the IRA in 1972.  With the exception of the materials related to Mr. Hughes,5 BC sought to have both subpoenas quashed in the U.S. District Court for the District of Massachusetts.

Mr. Moloney and the former IRA paramilitant, Anthony McIntyre, attempted to intervene in the lawsuit filed by BC, and separately filed a similar civil complaint seeking to block the production of these materials.  The court, however, ordered the production of all materials responsive to the first subpoena and 85 interviews responsive to the second.6  While BC did not appeal the order regarding the first subpoena, Messrs. Moloney and McIntyre appealed to the First Circuit.7  The circuit court affirmed the district court’s decision and ordered the production of materials from the interviews of Ms. Price, “who had admitted to being involved in the murder and ‘disappearances’ of four persons targeted by the IRA, including Jean McConville.”8  BC subsequently filed an appeal regarding the second subpoena, and the First Circuit overturned the denial of the motion to quash as to 74 of the 85 interviews, finding that they were not responsive to the subpoena.9  Thus, after two separate appeals, BC was ordered to produce both Ms. Price’s interview materials and the materials from 11 interviews relevant to Ms. McConville’s “disappearance.”10

The production of even these materials had profound consequences as they led to the recent arrest of Gerry Adams, the president of Sinn Féin and a current member of the Irish Parliament.  We explore further below both the scope of subpoena power as relevant to this proceeding and the accompanying statutory protections, as well as additional defenses with particular relevance to the Project: the reporter and academic privilege, and the self-critical analysis privilege.

The Power to Quash

Although the Federal Rules of Civil Procedure grant parties broad subpoena power, they also impose certain limitations.  Among such limitations, a court “must quash or modify a subpoena that requires disclosure of privileged or other protected matter, if no exception or waiver applies.”11  However, “the mere fact that a communication was made in express confidence … does not create a privilege.”12

Because the Belfast Subpoenas were issued under 18 U.S.C. § 3512 and the US-UK MLAT, a major threshold issue was whether, because the applicable treaty gives the Attorney General “exclusive prerogative in initiating proceedings[,] federal courts have discretion to quash a subpoena in this context.”13  While the government argued that “the Attorney General’s exclusive prerogative … [barred] judicial oversight of the subpoena enforcement process,” the First Circuit held that it had jurisdiction because “the enforcement of subpoenas is an inherent judicial function which … cannot be constitutionally divested from the courts of the United States.”14  Thus, resolution of the appeals turned on whether the appellants were able to assert a recognized privilege.

The Reporter’s Privilege

The primary substantive issue raised in the Belfast Project litigation was the protection afforded by the First Amendment to academics.15  Because such protection closely mirrors the protection enjoyed by reporters, a review of the reporter’s privilege is helpful.

The seminal case addressing this privilege is the Supreme Court’s decision in Branzburg v. Hayes, a plurality opinion unevenly interpreted by the circuits.  There, and briefly summarized, the Court held that even where revealing materials sought by a grand jury subpoena would break a reporter’s promise of confidentiality, the First Amendment does not protect the reporter from having to comply with the subpoena.16  Taking particular offense to the suggestion that the Constitution protected promises made to criminals that could undermine law enforcement, the Court reasoned that “we cannot seriously entertain 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.”17

Despite the Supreme Court’s reluctance to recognize such a privilege, subsequent decisions in lower courts have approved of some protections for subpoenaed reporters when the facts are distinguishable from Branzburg, especially in the context of civil litigation.18  Building on Justice Powell’s Branzburg concurrence, courts have held that “a qualified reporter’s privilege under the First Amendment should be readily available in civil cases,” and that to determine whether the privilege applies, courts should weigh “the public interest in protecting the reporter’s sources against the private interest in compelling disclosure.”19  Other courts have gone beyond the civil context, stating that there is “no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter’s interest in confidentiality should yield to the moving party’s need for probative evidence.”20

Importantly for the Belfast Project litigation, the First Circuit has held that the Constitution offers some protection for reporters’ confidential sources.21  In In re Special Proceedings, it held that “the disclosure of a reporter’s confidential sources may not be compelled unless directly relevant to a nonfrivolous claim or inquiry undertaken in good faith; and disclosure may be denied where the same information is readily available from a less sensitive source.”22  The First Circuit therefore requires “heightened sensitivity” to First Amendment concerns in civil litigation.23

The existence of a reporter’s privilege, even when limited to civil litigation, is not unanimously accepted.  The Seventh Circuit has held that while “[a] large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege … courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas.”24  Similarly, the Sixth Circuit has held that Justice Powell’s Branzburg concurrence is consistent with the majority opinion and creates no qualified privilege for the media.
Thus, while reporters in federal litigation may enjoy some protection for withholding subpoenaed information, such protection requires a favorable outcome of a balancing test whose existence and application diverge widely by circuit.25

The Academic Research 
Privilege

One of the primary concerns of the Branzburg plurality was that, because “almost any author could assert that he contributes to the flow of information to the public,” recognizing a reporter’s privilege for protecting confidential sources would force courts to define the scope of those covered by such a privilege, including whether it extended to academics.26  The Supreme Court subsequently declined to recognize an academic privilege in University of Pennsylvania v. E.E.O.C., an employment discrimination case, where it held that the First Amendment’s protection of academic freedom did not permit educational institutions to withhold subpoenaed confidential peer review materials relating to the tenure process.27

Nonetheless, as many courts recognized some form of a reporter’s privilege, they have also defined its scope to include academia.  In one of the early cases addressing the coverage afforded by the journalist’s privilege, the Second Circuit held in von Bulow by Auersperg v. von Bulow that an individual claiming the privilege “must demonstrate … the intent to use material sought to disseminate information to the public,” but need not necessarily be a traditional journalist.28  Citing von Bulow, among other cases, the First Circuit endorsed the reach of a privilege beyond journalists in Cusumano v. Microsoft Corp., where it noted that “several of our sister circuits have held that the medium an individual uses to provide his investigative reporting to the public does not make a dispositive difference in the degree of protection accorded to his work.”29  The Cusumano court then held that “[a]cademicians engaged in pre-publication research should be accorded protection commensurate to that which the law provides for journalists.”30

Despite the First Circuit’s recognition of this academic privilege, the courts in both Belfast Project appeals held that because the litigation involved underlying criminal proceedings, Branzburg’s analysis controlled their disposition.31  Thus, in the first appeal, the First Circuit held that even though compliance with the subpoenas could have some chilling effect, no academic privilege applied because Branzburg compelled the conclusion that the “choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.”32  Similarly, in the second appeal, where BC argued that a heightened sensitivity standard of relevancy should have applied, the court held that under Branzburg, “the public’s need for information relevant to a bona fide criminal investigation precludes the recognition of a First Amendment privilege not available to the ordinary citizen,” and ordered the production of all relevant materials.33  The First Circuit was clear that “[t]he choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.”34

The Self-Critical Analysis 
Doctrine

An additional, although more tenuous, argument for contesting the Belfast Subpoenas would have been the much-maligned self-critical analysis doctrine.  Although frequently cited by parties seeking to protect information, “a majority of the Circuits have refused to recognize or apply the privilege.”35  Originally described in Bredice v. Doctors Hospital,36 the privilege’s contours are generally agreed upon: first, “the information [at issue] must result from a critical self-analysis undertaken by the party seeking protection; [second] the public must have a strong interest in preserving the free flow of the type of information sought; [and third] the information must be of the type whose flow would be curtailed if discovery were allowed.”37  Courts have also applied “the general proviso that no document will be accorded a privilege unless it was prepared with the expectation that it would be kept confidential, and has in fact been kept confidential.”38

In Bredice, a plaintiff in a medical malpractice suit sought to discover information from a hospital’s professional staff committee meetings.  The court held that because the meetings were “not a part of current patient care, but [were] retrospective with the purpose of self-improvement, [they were entitled] to a qualified privilege on the basis of this overwhelming public interest.”39  The court further elaborated that “the public interest may be a reason for not permitting inquiry into particular matters by discovery,” and was especially concerned that the committee’s value would be destroyed if its proceedings were discoverable.40

Courts have subsequently been skeptical of the self-critical analysis privilege, but have frequently refrained from disavowing it, instead finding that specific facts in a particular litigation preclude its application.  In Dowling, for example, the Ninth Circuit held that even if the privilege existed, pre-accident safety reviews conducted on a ship were not subject to it because holding such reviews discoverable would not create a “chilling effect” on the candid assessment of safety issues.41  Likewise, in In re Currency Conversion Fee, the court held that while “the availability of the self-critical analysis privilege is an open question in [the Second] Circuit,” it did not protect management control studies and internal audit reports.42  In Ganious v. Apache Clearwater Operations, Inc., however, the court disclaimed the privilege more explicitly, stating that “all of the courts in [the Fifth] Circuit confronting the issue have declined to find that the self-critical analysis privilege exists, even in the instance of a post-accident investigation.”43

Although not cited by the parties at any stage of the Belfast Project litigation, the Project satisfied some of the privilege’s elements.  The interviews were certainly undertaken with the expectation of confidentiality, and the flow of sensitive information would undoubtedly cease if the subjects knew they were discoverable.  Further, the public may have had an interest in the continuation of the Project, although likely not rising to the level of the hospital meetings at issue in Berdice.  Most importantly, however, the interviews were not conducted for the express purpose of self-improvement, and lacking such a purpose, the privilege would most likely not have applied.

Conclusion

Individuals must proceed with caution when gathering information pursuant to confidentiality agreements.  We imagine that everyone involved in the Belfast Project thought the contractual provisions of confidentiality were sufficient.  The stakes, after all, were extremely high as individuals would be discussing criminal conduct, and therefore the interviews would not have taken place unless all involved believed those provisions would provide adequate protection.  The lesson learned here, however, is that contractual obligations of confidentiality are sometimes insufficient.  And here, that vulnerability came from abroad, in the form of a subpoena through a U.S. Commissioner providing assistance in a criminal matter to a foreign government.  Imposing the benefit of hindsight on those involved seems harsh; it is hard to blame them for failing to assess the likelihood that a U.S. Commissioner would be appointed to assist a foreign government in a criminal investigation.  But after this litigation, it seems clear that even assuming the First Amendment offers some protection to academics (or reporters), information gathered under contractual provisions of confidentiality will nonetheless be highly vulnerable to subpoena, especially for law enforcement purposes.  BC learned this lesson the hard way: it recently announced that it will return the original recordings from the Belfast Project to any interviewee who requests them and will not preserve any additional copies or transcripts.44  That is a shame for the pursuit of academic research projects and good faith efforts to explore dark moments in history with candor, but the First Circuit’s decisions make clear that contractual promises of confidentiality must yield to law enforcement requests for information.

Notes
1    In re Request from United Kingdom Pursuant to Treaty Between Gov’t of U.S. & Gov’t of United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price, 685 F.3d 1, 5 (1st Cir. 2012) [hereinafter “Moloney”], cert. denied, 133 S. Ct. 1796 (2013).
2    Id.  Importantly, “[n]o lawyers vetted the wording of [the underlying agreement for participants], and no one at BC other than [the head librarian and the head of Irish Programs at BC] reviewed Mr. Moloney’s contract or the one drawn up for interviewees.”  Beth McMurtrie, Secrets From Belfast, The Chronicle of Higher Education, Jan. 26, 2014, at 4, available at http://chronicle.com/article/Secrets-from-Belfast/144059/.
3    Section 3512 permits the government to seek court orders and the appointment of a commissioner to collect evidence to effectuate a request from a foreign government for assistance in the investigation or prosecution of criminal matters.
4    Moloney. 685 F.3d at 3.
5    Because Mr. Hughes was deceased, as per his Agreement for Donation, BC was no longer bound by any contractual confidentiality obligations regarding his interviews.
6    In re Request from the United Kingdom Pursuant to the Treaty Between the Gov’t of the U.S. & the Gov’t of the United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price, MISC. 11-91078-WGY, 2012 WL 194432 (D. Mass. Jan. 20, 2012).
7    See Moloney, 685 F.3d at 4.
8    Id. at 5.
9    Id. at 19; In re Request from the United Kingdom Pursuant to the Treaty between the Gov’t of the U.S. & the Gov’t of the United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price, 718 F.3d 13, 27 (1st Cir. 2013) [hereinafter “Boston College”].
10    See id.; Moloney, 685 F.3d at 4.
11    Id. 45(d)(3)(A)(iii).
12    Branzburg v. Hayes, 408 U.S. 665, 682 n.21 (1972).
13    Boston College, 718 F.3d at 23.
14    Id.
15    See Moloney, 685 F.3d at 16; Boston College, 718 F.3d at 20.
16    408 U.S. at 690-91; see also Moloney, 685 F.3d at 16.
17    Branzburg, 408 U.S. at 690-91.
18    See Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981) (stating that “every other circuit that has considered the question has ruled that a [reporter’s] privilege should be readily available in civil cases, and that a balancing approach should be applied”).  See also, e.g., In re Grand Jury Proceedings, 5 F.3d 397, 400 (9th Cir. 1993) (holding that no privilege applied when the “circumstances of the case fall squarely within those of Branzburg”).
19    See, e.g., Grand Jury Proceedings, 5 F.3d at 400.
20    United States v. Burke, 700 F.2d 70, 76-77 (2d Cir. 1983).  See also, e.g., United States v. Cuthbertson, 630 F.2d 139, 146-47 (3rd Cir. 1980).
21    Cusumano v. Microsoft Corp., 162 F.3d 708, 716 (1st Cir. 1998); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 596 (1st Cir. 1980).
22    In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004).
23    Id.
24    McKevitt v. Pallasch, 339 F.3d 530, 532-33 (7th Cir. 2003).  See also In re Grand Jury Proceedings, 810 F.2d 580, 583-84 (6th Cir. 1987) (rejecting the existence of a reporter’s privilege).
25    As of 2011, 40 states had enacted laws protecting reporters from subpoenas.  See Aaron Mackey, Number of states with shield law climbs to 40, 35 The News Media & the Law 3, 27 (Summer 2011), available at http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2011/number-states-shield-law-cl.  However, the federal law of privilege applies in federal cases involving state law claims.  See, e.g., Virmani v. Novant Health Inc., 259 F.3d 284, 287 n.3 (4th Cir. 2001).
26    Branzburg, 408 U.S. at 703.
27    493 U.S. 182 , 199-200.  This case is distinguishable from Branzburg and the Belfast Project litigation for at least two important reasons: first, Univ. of Penn. was reluctant to recognize a privilege where Congress had extended the relevant statute to educational institutions and provided for broad subpoena powers, but chose not to create a privilege for peer reviewed documents; and second, Univ. of Penn. found that the asserted infringement of First Amendment rights was “extremely attenuated,” because it relied upon a long chain of causation to claim that disclosure affected academic freedom.  Id. at 189, 199-200.
28    811 F.2d 136, 147 (2d Cir. 1987) (“On rare occasions the journalist’s privilege has been invoked successfully by persons who are not journalists in the traditional sense of that term”).
29    162 F.3d at 714.
30    Id.
31    Moloney, 685 F.3d at 16; Boston College, 718 F.3d at 24.
32    Moloney, 685 F.3d at 19.
33    Boston College, 718 F.3d at 24.
34    Moloney, 685 F.3d at 19.
35    Davis v. Kraft Foods N. Am., CIV A 03-6060, 2006 WL 3486461, at *2 (E.D. Pa. Dec. 1, 2006).
36    50 F.R.D. 249 (D. D.C. 1970).
37    Dowling v. Am. Hawaii Cruises, Inc., 971 F.2d 423, 426 (9th Cir. 1992) (citing Note, The Privilege of Self–Critical Analysis, 96 Harv. L. Rev. 1083, 1086 (1983)).
38    Dowling, 971 F.2d at 426 (citing Peterson v. Chesapeake & Ohio Ry., 112 F.R.D. 360, 363 (W.D. Mich. 1986); Westmoreland v. CBS, Inc., 97 F.R.D. 703, 706 (S.D.N.Y. 1983)).
39    Bredice, 50 F.R.D. at 251.
40    Id.
41    Dowling, 971 F.2d at 426.
42    In re Currency Conversion Fee, MDL 1409, 2003 WL 22389169, at *4 (S.D.N.Y. Oct. 21, 2003).  But see Trezza v. Hartford, Inc., 98 CIV. 2205 (MBMKNF), 1999 WL 511673, at *3 (S.D.N.Y. July 20, 1999) (holding that self-critical analysis privilege protected voluntary internal studies regarding employment discrimination).
43    CRIM.A. 98-207, 2004 WL 287366, at *2 (E.D. La. Feb. 11, 2004).
44    Peter Schworm, BC will return its interviews on Ireland, The Boston Globe, May 6, 2014, available at http://www.bostonglobe.com/metro/2014/05/06/boston-college-says-interviewees-northern-ireland-troubles-oral-history-project-can-get-their-tapes-back/cRgXf2Th3My0H3zqOq1q6H/story.html.