Bereft Of Legal Shield, Scholars' Work Is Open To Federal Eyes
ROBERT SIEGEL, HOST:
In the case of the 1972 murder and the oral history interviews that are said to shed light on it, did Boston College have a right to resist disclosure of the interviews in its archive? Well, Harvard law professor Noah Feldman addressed that question in a column for Bloomberg View, and he joins us now. Welcome to the program.
NOAH FELDMAN: Thank you for having me.
SIEGEL: And, first is there any federal law defending an academic researcher's right to keep the confidence of an interviewee?
FELDMAN: No, there isn't. And indeed federal law doesn't even protect a journalist, whereas state laws - 49 state laws actually do protect journalists from having to reveal sources. But the federal government does not and, indeed, only one state that I've been able to find - Delaware - protects scholars, otherwise even the states don't provide that protection.
SIEGEL: Even if I claimed although I'm an academic, I'm writing journal articles about this, I can't claim that I'm a journalist of some kind?
FELDMAN: That would be trickier. Different states define what counts as a journalist differently. Some require you to make your living from your journalism; others simply to be actively involved in it. So, that would actually vary from state to state. But, again, it wouldn't have mattered in this case because federal law was used here and there's no federal shield privilege, even for journalists.
SIEGEL: If Boston College really had wanted to maintain the confidence of the people who spoke about Northern Ireland for the oral history project - if they wanted not to see any of that information disclosed, did they have a legal course of action that might have defended them?
FELDMAN: Not one that would have issued in success ultimately, no. Provided that they were the owners of the documents - and as far as I've heard they indeed were - there was really no recourse available to them under federal law. I know they tried, at least in part. There's some debate about how much they tried. But ultimately, I can see no way that they would have been victorious.
SIEGEL: You say so long as they were the owners of the documents in question. Who else might have been the owners?
FELDMAN: Well, one alternative possibility, which we may see more of in the future, is that if an individual - say the journalist or the interviewer, in this case, the scholarly interviewer - owned the materials and had right of refuse over them, perhaps that person could have simply refused to comply with the subpoena. Now, that would be prohibited and you could go to jail for that the same way that a journalist might go to jail to protect a source. But the person would at least have the capacity to do that, whereas an institution is extraordinarily unlikely to engage in that kind of civil disobedience.
SIEGEL: But there would be a chief librarian or a college president if they felt that strongly about it. Could they have done what a journalist might do?
FELDMAN: The chief librarian almost certainly works for the college president. I think it's certainly implausible that the head of a nonprofit corporation could do that, could probably have been blocked from doing that by, say, the board of directors. Then you'd need the board of directors of Boston College to take a stand like this. And again, extraordinarily unlikely that an institution would engage in that kind of civil disobedience.
SIEGEL: You wrote that an oral history archive might be more deserving of a privilege than a reporter, say, since people who are promised that their answers will be confidential for years and years, if not decades, are perhaps less likely to abuse confidentiality than, say, a White House source with a reporter in the office and an ax to grind.
FELDMAN: One of the criticisms of journalist shield laws and one of the reasons that we don't have a federal journalist shield law is the possibility - indeed the reality - that government officials do try to use the media to achieve certain political ends. The most recent prominent example of this was Scooter Libby telling Judith Miller of the New York Times the name of Valerie Plame, a CIA agent, as part of a political attempt to discredit her husband. And under those circumstances, there was an investigation and Miller had to go to prisoner, ultimately - or jail rather - in order to try to resist telling. But in the end, the information came out. In contrast, that situation essentially can't arise with a scholar. There would be very little reason to try to manipulate public opinion decades into the future and that's usually when oral history material would eventually become public.
SIEGEL: When a reporter goes to jail, as Judith Miller in the case that you described, one think why journalists support that behavior is that we're concerned about a chilling effect, that if anything told to any of us in confidence is turned over to the authorities upon request, who's going to speak to us in confidence? Do oral history projects have any argument like that? Do we think there's a chilling effect on people talking about what it was really like when Obamacare was written because of something that's happened here at Boston College?
FELDMAN: I think it's probable that there will be a chilling effect because what happens when information is disclosed is that it's not just the secrets that come out. It's everything that comes in the oral history, which will be released at an earlier time than the people would have expected. And so one of the benefits of oral historical sources, if you use them as a researcher, as I've had the good luck to be able to do on occasion, is that you're really getting a raw account from the subject. Usually when somebody's being interviewed, he or she is full of qualifications and concerns and cares. I don't need to tell you that. You do that every day. But after someone's been interviewed for a long time to tape and has been assured that the information won't come out for many years, an astonishing degree of candor can begin to emerge. And that sort of thing will simply disappear if the person must always be asking himself or herself what will come out and when might it come out. That just changes the whole tenor of the experience.
SIEGEL: Professor Feldman, thank you very much for talking with us today.
FELDMAN: Thank you so much for having me.
SIEGEL: That's Harvard Law Professor Noah Feldman.