On Thursday, Boston College owes the First Circuit a brief that will lay out the basis for their appeal of the district court's order to turn over Belfast Project interview materials to the U.S. Attorney's Office in Boston. Because of some bad timing, the lawyers working on that brief are stuck with an unfortunate guessing game: The same court has already heard argument in another appeal regarding many of the same subpoenaed materials, but the court has not announced its decision in that case.
Remember that in its April hearing, the court brushed aside the government's efforts to limit the issues before the court, insisting that Assistant U.S. Attorney Barbara Healy Smith address a set of constitutional challenges raised against the subpoenas by the lawyers for Ed Moloney and Anthony McIntyre, BC's Belfast Project researchers. Asked if the First Amendment protects the confidentiality of academic research, Smith responded that there "is not a recognized privilege that would protect someone from giving evidence absent a strong countervailing interest -- constitutional, common-law, or statutory privilege."
That's the heart of the position that BC will need to attack if it wishes to kill any part of these subpoenas, and the university's lawyers have to frame their argument without knowing what the court thinks of a set of issues it has probably already considered.