[h/t John Mueller]
The DOJ brief argues in the alternative when it comes to the important question of whether oral historians are like journalists.
On the one hand, it suggests that the Boston College researchers are mere academics, and seizing information from them should be easier than prying it from reporters "because the Constitution and the courts have long recognized the unique role which news reporters play in our constitutional system. See, e.g., Branzburg, 408 U.S. at 681; New York Times Co. v. Sullivan, 376 U.S. 254, 268-71 (1964). The limited protections afforded news reporters in the context of a grand jury subpoena should be greater than those to be afforded academics engaged in the collection of oral history."
The brief does not explain why this should be so. In Sullivan, the Court applied the same reasoning to the four private individuals sued by Sullivan as it did to the New York Times.
(An eminent legal scholar tells me that the DOJ is not idiosyncratic in its reading of Sullivan as celebrating the importance of newspapers. But I don't see it drawing a distinction betweeen journalists and scholars.)
And Branzburg, the other case cited, explicitly rejects a distinction between journalists and other investigators:
The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury.
Perhaps sensing this problem, the DOJ brief goes on to argue that even a journalist, if confronted by the same subpoena, could be forced to disclose the information under Branzburg.
According to Inside Higher Ed, Kathi Westcott, associate counsel of the American Association of University Professors,
said that many courts have "recognized that academic scholarship is deserving of specified protection and that such protection requires a balancing approach in attempting to ensure that investigative demands are sufficiently factually based and narrow so as to limit the potential chilling effect these types of requests might have on future academic research."
I would be interested to see a full version of that argument.