As expected, the First Circuit has denied Moloney & McIntyre’s petition for a hearing by the panel or en banc in the Belfast Project case. There was no dissent. Moloney & McIntyre have already signaled their intention to file a petition for a writ of certiorari in the Supreme Court.
For those of you wanting to keep an eye on the case, Moloney & McIntyre have ninety days from the denial of the petition for a rehearing to file their petition with the Supreme Court. Their biggest concern now will no doubt be the stay that has, until now, kept the government from producing the interviews within the scope of the subpoena to the UK authorities. Boston College still has an appeal pending; but its appeal doesn’t extend to the Dolours Price interviews. So the BC appeal doesn’t give any reason to the court to continue the stay with respect to the Price interviews. The First Circuit could, on motion, stay its mandate under FRAP 41. In order to win an extended stay from the First Circuit, Moloney & McIntyre will need to show “that the certiorari petition would present a substantial question and that there is good cause for a stay”. But if the court doesn’t extend its stay, Moloney & McIntyre may need to seek relief in the Supreme Court. Otherwise, if the stay expires, the mandate issues, and the government turns over the Price interviews to the UK, then it seems to me that Moloney & McIntyre’s case, at least with regard to the Price materials, becomes moot. If Moloney & McIntyre do want to seek a stay from the Supreme Court, they will address their application to Justice Breyer, who is the justice allotted to the First Circuit. He can rule on the motion for a stay on his own or else refer it to the full court.
The ACLU had sought leave to file in support of the request for a rehearing. My post on the proposed ACLU brief, which was to run next week, is now moot, too, but here’s the substance of it.
The ACLU has moved for leave to submit a new brief in support of Moloney & McIntyre’s petition for rehearing. I like the new brief—it is short and direct and to the point. The basic point is that Moloney & McIntyre had a right to be heard and that the court’s decision doesn’t respect that right.
Is this so, though? If there’s one thing I think it’s fair to say, it’s that Moloney & McIntyre have had their share of days in court. It’s true that the court denied their motion for leave to intervene in Boston College’s case, but they have presented the substance of their arguments in the case they filed on their own. The gist of the First Circuit’s decision, as I understand it, is that the Supreme Court already weighed the kinds of arguments that Moloney & McIntyre seek to make and found them wanting. Take the following hypothetical: on a certain set of facts, the Supreme Court holds that a reporter must produce documents responsive to a grand jury subpoena notwithstanding his First Amendment objections. Surely the ACLU doesn’t mean to suggest that on indistinguishable facts, another court would be wrong to give a judgment on the pleadings? Now, I’m not suggesting that Branzburg and the present case are entirely indistinguishable. But if you think, as the First Circuit did, that Branzburg was similar to this case in the relevant respects, then I don’t see why there should be a right to anything more than Moloney & McIntyre had in this case, which was argument and a decision on the pleadings.